US v. Donald Reaux, No. CRIM. A. 01--71, US District Court for the Eastern District of Louisiana

DATE and LOCATION of HEARING:
 

JUDGE:
Hon. Sarah S. Vance, United States District Judge

GOVERNMENT WITNESSES:
N/A

DEFENSE WITNESSES:
N/A

DECISION:
Defense motion in limine seeking to exclude expert testimony on latent fingerprint evidence denied. 

Background: 
Defendant Donald Reaux was charged with bank robbery in violation of 18 USC. 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 Pharmaceuticals, Inc., 509 US 579, 113 S.Ct. 2786 (1993) and Kumho Tire Co. v. Carmichael, 526 US 137, 119 S.Ct. 1167 (1999). Reaux also seeks an evidentiary hearing on the motion.
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 US 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 US 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 US 821 (1998); United States v. Garcia, 86 F.3d 394, 400 (5th Cir.1996), cert. denied, 519 US 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 US 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 US 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

  *2 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 US 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 US 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

 *3 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.
 

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.

US v. Ahmed K. Henry, Criminal Action No. 00-50057-01, US District Court for the Western District of Louisiana, Shreveport Division

DATE and LOCATION of HEARING:
No Daubert hearing was held.  Gordon N. Blackmon, Jr. filed a motion for a Daubert hearing regarding fingerprints. 

JUDGE:
Hon. Tom Stagg, US District Court Judge

ATTORNEYS:
Prosecution: C. Mignonne Griffing and Ross Owen 
Defense: Gordon N. Blackmon, Jr

GOVERNMENT WITNESSES:
Caddo Country Sheriff''s Office Lt. Garry Bass, CLPE, was the Latent Print Examiner directly involved in the case and he presented fingerprint expert testimony during the subsequent criminal trial. Sergeant Owen McDonnell, Jr., CLPE, (318.681.0643) assisted in Daubert fingerprint coordination. 

DEFENSE WITNESSES:
No witnesses called.

DECISION:
Judge Stagg denied the motion for a Daubert hearing in a written memorandum order issued the 20th day of November, 2001 and denied the defendant's "motion to exclude the government's latent fingerprint identification evidence." 


US v. Hernan Navarro, Appellant Nos. 00-1848 and 00-1992, US Court of Appeals, 3rd Circuit, on Appeal from the District Court of the Virgin Islands (D.C. Criminal No. 99-CR-00016-1,2,3,4)

DATE and LOCATION of HEARING:
No Daubert hearing was held. Decision addressing Daubert fingerprint issues published October 24, 2001.

ATTORNEYS:
Prosecution: Bruce Z. Marshack
Defense: Warren B. Cole, Patricia Schrader-Cooke, Jean-Robert Alfred, Wilfredo A. Geigel 

GOVERNMENT WITNESSES: FBI Fingerprint Specialist Kenneth Getz testified concerning Navarro's latent print at the original trial. 

DEFENSE WITNESSES: None regarding fingerprint or Daubert issues.

DECISION: Defense objected that only the FBI Fingerprint Specialist's conclusions were disclosed during discovery and not the bases and reasons for his conclusions, and not his qualifications. Trial court admitted fingerprint expert testimony because Defense waited until trial to raise the objection and failed to ask for a Daubert Hearing concerning bases and reasons for conclusions. The Appellate court affirmed admission of expert fingerprint testimony. 

See the US v. Navarro Court of Appeals Ruling


State of New York v. Hyatt, October 10, 2001, Supreme Court of the State of NY, County of Kings

DATE and LOCATION of HEARING:
October 4, 2001, Kings County, NY

JUDGE:
Hon. Michael J. Brennan 

ATTORNEYS:
 Prosecution: Caryn J. Hynes, Hillary Shaeffer
Defense: Robert Zuss

GOVERNMENT WITNESSES:
 None

DEFENSE WITNESSES:
Simon Cole

DECISION:
A Frye Hearing was conducted to determine if Simon Cole could testify as an expert witness for the Defense regarding his research and knowledge into the scientific reliability of fingerprint identification. "Dr. Cole's basic premise is that the scientific underpinning for the acceptance of fingerprint evidence by the court is suspect. 

Summary: After listening to Simon Cole's testimony, the court ruled that "Even applying the Federal Court's Daubert Standard, what Dr. Cole has offered here is 'junk science.' To take the crown away from the heavyweight champ you must decisively out score or knock him out. Going twelve (12) rounds will just not do. What Dr. Cole has offered here is interesting but too lacking scientific method to even bloody the field of fingerprint analysis as a generally accepted discipline."

Click here to read the Court's decision. 

Click here to read Simon Cole's testimony. 

U.S. v. Alberto Martinez-Lopez, Criminal Action No. 01cr1987-DAE, U.S. District Court for the Southern District of California

DATE and LOCATION of DAUBERT HEARING:
October 4, 2001; San Diego, Ca.

JUDGE:
Hon. David A. Ezra, U. S. District Court Judge, visiting from District of Hawaii

ATTORNEYS:
Prosecution: AUSA David W. Mitchell (619) 557-6254
Defense: Kevin Bringuel, Federal Defenders of San Diego

GOVERNMENT WITNESSES:
John Torres, Certified Latent Print Examiner for the San Diego Police Department

DEFENSE WITNESSES:
None

DECISION:
The Court found no merit in the defense’s suggestion that Mr. Torres’ fingerprint testimony lacked Daubert credibility.  In so ruling, the Court noted the defense’s attempt to extrapolate generalizations that do not exist from a July 28, 2000 National Institute of Justice article that calls on the need for further testing and further certification for qualification of those who testify concerning fingerprint analysis.  The Court found that the defense tried to cite the article for things it does not say and found no lack of expertise in the testifying witness in this case.  Fingerprint evidence and testimony is admissible.

US v. Gary Ramsey, Criminal Action No. 01-005-05, US District Court for the Eastern District of Pennsylvania

DATE and LOCATION of DAUBERT HEARING:
October 15-16, 2001; Philadelphia, PA

JUDGE:
Hon. J. William H. Yohn, U. S. District Court Judge

ATTORNEYS:
Prosecution: AUSA Nancy Beam Winter (215.861.8473)
Defense: Benjamin Cooper, Robert Epstein - Federal Defenders

GOVERNMENT WITNESSES:
none for Daubert Hearing - presented stipulated testimony of the following and then parties proceeded to argument:
Dr. William Babler, Marquette University
David Ashbaugh, Royal Canadian Mounted Police
Edward German, US Army Crime Laboratory
Stephen Meagher, FBI (202.324.6157)
Don Ziesig, Lockheed Martin Corp.
Dr. Bruce Budowle, FBI
Pat Wertheim, Fingerprint Consultant

DEFENSE WITNESSES:
none for Daubert Hearing - presented stipulated testimony of the following:
Marilyn Peterman, Defense Investigator
James Starrs, George Washington University
David Stoney, McCrone Institute
Simon Cole, Rutgers University

DECISION:
Oral decision presented by Judge Yohn on October 16, 2001.  The defense motion to exclude fingerprint evidence and testimony was denied.  (The government’s motion to exclude the defense witness Professor James E. Starrs was also denied in a later ruling, but defense “expert” not permitted to testify as a expert in fingerprints - permitted to testify as to the area of “scientific methodology” only.  Defense then elected not to present any experts.)  Judge ruled that the evidence is overwhelming that fingerprints are unique and permanent and that in weighing the Daubert criteria, th balance weighed in favor of admission.  No written decision.  NIJ Fingerprint Solicitation had previously been issued - defense had subpoenaed NIJ personnel to testify (Richard Rau, program manager) but then elected not to present that witness either.

 

Commonwealth of PA v. Andrew J. Vikara, III, 2000 Criminal 2264 - Lackawanna County, PA
(Frye Hearing)

DATE AND LOCATION OF TESTIMONY:
October 22, 2001
Videoconference with jury present at University of Scranton

JUDGE:
Carmen D. Minora

ATTORNEYS:
Prosecution: Andrew Jarbola, District Attorney
                   Gene Talerico, 1st Asst. DA

Defense:      Douglas Clark
                   Robert Munley

GOVERNMENT WITNESSES:
Case-in-Chief: Trooper Joseph Cocco, Penna. State Police, Dunmore, PA
                     Trooper George Scochin
Rebuttal:        Stephen Meager, FBI

DEFENSE WITNESS:
Prof. James Starrs

DECISION:

Prof. Starrs was called as an expert in the methodology of fingerprint comparison.  Starrs was not offered as an expert in comparing latent/inked prints.  Pennsylvania is a FRYE state, and, as such, the trial court permitted Starrs' testimony over objection of the Commonwealth.  Starrs presented approx. 20 slides to explain his testimony.  Starrs renounced much of his written report during cross examination.  His critique centered upon the lack of training/experience of the PSP print examiners.

The defendant was convicted of 1st Degree Murder and Robbery and was sentenced to death.  N.B.:  The defendant appealed conviction, however, on January 10, 2002, the defendant died in the State Correctional Institute at Camp Hill, PA.  Therefore, all appeals are moot.

U.S. v. Dennis Mooney, Criminal Action No. 01-03-B-S, U.S. District Court for the District of Maine

DATE and LOCATION of DAUBERT HEARING:
December 5, 2001; Bangor, Maine

JUDGE:
Hon. George Singal, U. S. District Court Judge

ATTORNEYS:
Prosecution: AUSA Gail Fisk Malone (207.945.0373)
Defense: Jeff Silverstein

GOVERNMENT WITNESSES:
Charles Colman, ATF (fingerprints)
Lawrence Herb, ATF (handwriting)

DEFENSE WITNESSES:
None

DECISION:
Oral decision presented by Judge Singal on December 5, 2001.  The defense motion to exclude fingerprint evidence and testimony was denied without a hearing.  Fingerprint evidence and opinion is admissible.  Daubert hearing held on handwriting comparison evidence.  Held admissible.  No written decision. 

GOVERNMENT’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION IN LIMINE REGARDING EXPERT TESTIMONY ON FINGERPRINT AND HANDWRITING IDENTIFICATION
 


US v. Llera Plaza, Acosta, Rodriguez; PART 1 - January 7, 2002; Cr. No. 98-362-10, 11, 12 in the US District Court of the Eastern District of Pennsylvania 

DATE and LOCATION of HEARING:
 N/A - Decision based on prior hearings record.

JUDGE:
 Hon. Louis H. Pollak 

ATTORNEYS:
 

GOVERNMENT WITNESSES:
 N/A

DEFENSE WITNESSES:
N/A

DECISION:
A. This court will take judicial notice of the uniqueness and permanence of fingerprints. 

B. The parties will be able to present expert fingerprint testimony (1) describing how any latent and rolled prints at issue in this case were obtained, (2) identifying, and placing before the jury, such fingerprints and any necessary magnifications, and (3) pointing out any observed similarities and differences between a particular latent print and a particular rolled print alleged by the government to be attributable to the same persons. But the parties will not be permitted to present testimony expressing an opinion of an expert witness that a particular latent print matches, or does not match, the rolled print of a particular person and hence is, or is not, the fingerprint of that person.


US v. Llera Plaza, Acosta, Rodriguez; PART 2 - 13 March 2002; Cr. No. 98-362-10, 11, 12 in the US District Court of the Eastern District of Pennsylvania 

DATE and LOCATION of HEARING:
February 25-27, 2002
Philadelphia, PA

JUDGE:
 Hon. Louis H. Pollak 

ATTORNEYS:
AUSA Paul Sarmousakis, et al.
Jule Epstein, et al.
 

GOVERNMENT WITNESSES:
Stephen Meagher, Latent Print Unit Chief, FBI Laboratory, Washington, DC
Kenneth Smith, Fingerprint Specialist, US Postal Inspection Service Laboratory, Dulles, VA

DEFENSE WITNESSES:
Allan Bayle, Forensice Ridgeologist (fingerprint expert), private consultant, London, England 
Janine Arvizu, Laboratory Quality Auditor
Ralpha Norman Haber, Psychometrician

DECISION:

On 13 March 2002 the Honorable Louis H. Pollak vacated his 7 January 2002 ruling. He will permit fingerprint experts to testify to positive identifications. 13 March 2002 Order

US v. Llera-Plaza documents at US Attorney for Eastern District of PA website

US v. Harry Ralph Neal; January 2, 2002; Cr. No. 01-68, in the US District Court of the Western District of Pennsylvania 

DATE and LOCATION of HEARING:
 January 2, 2002, Pittsburgh, PA

JUDGE:
 Hon. William L. Standish 

ATTORNEYS:
 Prosecution: AUSA Shaun Sweeney
 Defense: John Halley

GOVERNMENT WITNESSES:
 Stephen Meagher, FBI Laboratory

DEFENSE WITNESSES:
 None

DECISION:
Judge Standish ruled that FBI Fingerprint Specialist Edward Brannon could testify at trial regarding his comparison and analysis of two latent fingerprints from two separate bank robberies with which Neal had been charged.  In addition, Judge Standish ruled that Mr. Brannon could testify that fingerprints are unique and permanent.  Finally, Judge Standish ruled that, if  Mr. Brannon's opinion was that the two latents were made by Neal and by no other, Mr. Brannon could give that opinion testimony. 

People of the State of Colorado v. Billy Joe McGhee

DATE and LOCATION of  Shreck (DAUBERT) HEARING:
February 4, 2002, Colorado Springs, Colorado

JUDGE:
 Hon.  Thomas Kane

ATTORNEYS:
Prosecution: Dave Young
Defense: William Martinez, Deborah Grohs

GOVERNMENT WITNESSES:
Stephen Meagher, FBI

DEFENSE WITNESSES:
Simon Cole

DECISION:
Court ruled from the bench that the defense motion was denied; admitted fingerprint evidence and permitted the fingerprint expert to testify to the identification. US v. Llera-Plaza decision was taken into consideration.

US v. Kenneth L. Coleman, et. al.; S2-4:01CR296ERW, US District Court of the Eastern District of Missouri

DATE and LOCATION of DAUBERT HEARING:
February 5, 2002, St. Louis, MO

JUDGE:
 Hon.  E. Richard Webber

ATTORNEYS:
Prosecution: AUSA Julie Wright
Defense: Huber & Huber; Peter Huber, Ron Jackson

GOVERNMENT WITNESSES:
Stephen Meagher

DEFENSE WITNESSES:
N/A

DECISION:
Court ruled from the bench that the defense motion was denied; admitted fingerprint evidence and permitted the fingerprint expert to testify to the identification. US v. Llera-Plaza decision was taken into consideration.

GOVERNMENT’S RESPONSE to Defendant's motion for Daubert hearing.

US v. Brent Merritt, Cause# IP01-081-CR-01 T/F, US District Court of the Southern District of Indiana

DATE and LOCATION of DAUBERT HEARING:
February 19, 2002, Indianapolis, IN

JUDGE:
 Hon.  John David Tinder

ATTORNEYS:
Prosecution: AUSA Joe Vaughn
Defense: Richard Kammen

GOVERNMENT WITNESSES:
Stephen Meagher

DEFENSE WITNESSES:
N/A

DECISION:
Court indicated from the bench that the defense motion would be denied and to admit fingerprint evidence and permit the fingerprint expert to testify to the identification. A written decision is forthcoming. US v. Llera-Plaza decision was taken into consideration.

US v. Aaron London, Criminal Action No. 01-699 (JAP), US District Court for the District of New Jersey 

DATE and LOCATION of HEARING:
March 12, 2002; Newark, New Jersey (NOT A DAUBERT HEARING)

JUDGE:
Hon. Joel A. Pisano, U. S. District Court Judge

ATTORNEYS:
Prosecution: AUSA Diana Vondra Carrig (856-968-4927)
Defense: Lori Koch, AFPD 

GOVERNMENT WITNESSES:
N/A

DEFENSE WITNESSES:
N/A 

DECISION:
Oral decision presented by Judge Pisano on March 12, 2002.  In pretrial motions, the defendant moved to exclude fingerprint evidence in accordance with Judge Pollak’s decision in United States v. Llera Plaza (but did not ask for a full blown Daubert hearing or the exclusion of all fingerprint evidence).  Judge Pisano denied defendant’s motion summarily, stating that Judge Pollak's opinion was limited on its facts and, in any event, was not binding upon the Court.  He also noted that Pollack’s opinion flew in the face of a hundred years of jurisprudence, went against every other decided opinion, and was just plain wrong on the merits.  No written decision. 

US v. Salim,  Criminal Action No. 01-CR. 02 (DAB), US District Court for the Southern District of New York

DATE and LOCATION of DAUBERT HEARING:
NONE HELD;  OPINION , March 11, 2002

JUDGE:
Hon. Deborah A. Batts, U. S. District Court Judge

ATTORNEYS:
Prosecution: AUSA Robert Buehler 212.637.2200

Defense:

GOVERNMENT WITNESSES:
NONE

DEFENSE WITNESSES:
NONE

DECISION
Written decision by Judge Batts on 3/11/02.  WestLaw cite is 2002 WL 372911 (S.D.N.Y.).  Defendant moved to exclude “Match” testimony by FBI latent print expert based on United States v. [Llera]-Plaza case from the Eastern District of Pennsylvania.  Judge Batts denied the defendants Motion finding : “The Plaza Court, after a detailed and in-depth analysis of the basic premises of fingerprint identification, appeared to have been troubled by what it repeatedly referred to as a high degree of subjectivity in the evaluation stage....Accordingly, the Plaza Court allowed the presentation of testimony as to the entirety of the fingerprint identification process, with the exception of "evaluation testimony", i.e., that a particular latent print is in fact the print of a particular person.... This Court is unpersuaded by such reasoning, for it hearkens to an imprudently stringent understanding of scientific objectivity. Contrary to the Plaza reasoning, the mere fact that an expert utilizes his or her expertise and training to determine whether there is enough agreement of the various print ridge formations to be able to individualize and ultimately, to ‘match’ a print, does not constitute an absence of standards to render the technique unreliable. Rather, the methods of comparison are in fact testable such that both parties can subject prints to verification. The appropriate attack of an expert's "match" opinion is in rigorous cross-examination and the presentation of other experts to challenge the findings, not the wholesale preclusion of a reliable methodology. See Daubert, 509 U.S. at 595 (‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attaching shaky but admissible evidence.’). Indeed, such reasoning could function to render numerous categories of expert evidence, such as psychiatric or medical forensic evidence which rest in some part upon that individual's skill and experience in analyzing data, unreliable. Daubert and its progeny simply do not mandate such a conclusion.

This Court finds that the methodology undertaken by the Government's expert ... meets the Daubert standard for reliability as the generally-accepted technique for testing fingerprints and that fingerprint comparison has been subjected to peer review and publication.” 2002 WL 372911(S.D.N.Y.) at 8. 

Click here to read the opinion in pdf

US v. Jerome Washington, Criminal Action No. 00-90027, U.S. District Court for the Eastern District of Michigan

DATE and LOCATION of DAUBERT HEARING:
None.  Hearing held on defendant’s motion to reconsider earlier motion to exclude “subjective” opinion testimony of palm print expert, March 14, 2002; Ann Arbor, MI.  Motion decided on briefs based on legal argument alone.

JUDGE:
Hon. Marianne O. Battani, U. S. District Court Judge

ATTORNEYS:
Prosecution: AUSA Barbara L. McQuade (313.226-9725)
Defense: Douglass Mullkoff

GOVERNMENT WITNESSES:
None.  Declaration of Steven Meagher of FBI Latent Print Unit was attached to government’s brief. 

DEFENSE WITNESSES:
None.  Defense relied entirely on Jan. 7, 2002, Plaza decision.

DECISION:
 Oral decision presented by Judge Battani on March 14, 2002.  Court denied defense motion to exclude “subjective” opinion testimony as to whether the latent print matched the defendant’s print.  Court treated motion as motion for reconsideration for earlier motion, which court summarily denied without a Daubert hearing.  Court relied on Havvard.  The court took note that J. Pollak reversed his decision in Llera-Plaza. 

U.S. v. James M. Broten, et al., Case No. 01-CR-411 (DNH), U.S. District Court for the Northern District of New York

DATE and LOCATION of DAUBERT HEARING:
N/A

JUDGE:
Hon. David N. Hurd, U. S. District Court Judge

ATTORNEYS
Prosecution: AUSAs Robert P. Storch and David M. Grable (518.431.0247)
Defense: Kent B. Sprotbery, Assistant Federal Public Defender

GOVERNMENT WITNESSES:
N/A

DEFENSE WITNESSES:
N/A

DECISION:
Brief written Memorandum-Decision and Order filed 3/25/02.  The defense motion to exclude expert fingerprint and handwriting analysis evidence and testimony was denied.  Defense request for a pre-trial Daubert hearing also denied. Read the 3/25/02 order in pdf.
 

Commonwealth v. Owen McCants; Case # 00 SUCR 10994

DATE and LOCATION of DAUBERT HEARING:
April 22, 2002, Boston, Massachusetts

JUDGE:
Honorable Charles Spurlock

ATTORNEYS:
Prosecution: Ass't. DA Dave Deakin
Defense: Mark Shea

GOVERNMENT WITNESSES:
Stephen Meagher (did not need to testify)

DEFENSE WITNESSES:
Simon Cole

DECISION: 
Judge heard argument for the need to have a hearing on the admissibility of fingerprint evidence and expert testimony and further permitted defense witness Simon Cole to testify in support of having a hearing. After Simon Cole testified the Judge ruled that a hearing wasn't necessary and denied the defense motion for the hearing.
 

People of the State of Colorado v. Neris Alvarado Mejia; Case Number 01 CR 54, District Court, Pitkin County, CO

DATE and LOCATION of DAUBERT HEARING:
May 6, 2002, Aspen, Colorado

JUDGE:
Honorable J. E. DeVilbiss

ATTORNEYS:
Prosecution: Asst. DA Lawson Wills
Defense: Charles McCrory

GOVERNMENT WITNESSES:
Stephen Meagher (did not need to testify)

DEFENSE WITNESSES:
N/A

DECISION:
Judge heard counsels' arguments and ruled from the bench that a Shreck hearing on the admissibility of fingerprints was not necessary.
 

State of Delaware vs. Donald Cole; ID# 0110006694

DATE and LOCATION of DAUBERT HEARING:
May 13, 2002, Wilmington, DE

JUDGE:
Honorable Richard S. Gebelein

ATTORNEYS:
Prosecution: Ass't. DA Dan Miller
Defense: Brian Bartley

GOVERNMENT WITNESSES:
Stephen Meagher, FBI

DEFENSE WITNESSES:
Simon Cole

DECISION:
Written decision issued June 26, 2002. The defense motion to suppress the fingerprint evidence was denied. 

State of California  v. Daniel Phillip Gomez, Orange County Superior Court, Case No.  99CF0391

DATE and LOCATION of HEARING:
May 20, 2002, Santa Ana, California


JUDGE:
Honorable  Jack Ryan

ATTORNEYS:
Prosecution: Quan Tran Deputy District Attorney, Orange Co. CA
Defense: Phillip Zalewsky, Deputy Public Defender, Orange Co. CA.


GOVERNMENT WITNESSES:
William Leo, Los Angeles Sheriff’s Department, Rebuttal Witness

DEFENSE WITNESSES:
Prof. James Starrs, George Washington University, Washington, D.C.


DECISION:
At a pre-trial evidence hearing the judge ruled that the fingerprint evidence could not be excluded.  However, as part of the defense, Prof. Starrs was allowed to testify before the jury challenging the reliability of fingerprint evidence.  Starrs presented his testimony using a slide show presentation.  Starrs never compared the latent prints or offered an opinion as to the identification.  William Leo was allowed to rebut Starrs testimony.  The defendant was found guilty
.
US v. Dennis Lee Davis., Case No. 02-CR-43-K, U.S. District Court for the Northern District of Oklahoma

DATE and LOCATION of DAUBERT HEARING:
August 26, 2002; Tulsa, Oklahoma 

JUDGE:
Honorable Terry C. Kern, U. S. District Court Judge 

ATTORNEYS:
Prosecution: AUSA Charles McLoughlin (918-581-6952) 
Defense: Jack Schisler, Assistant Federal Public Defender 

GOVERNMENT WITNESSES:
Kenneth R. Moses, Independent FP Expert 

DEFENSE WITNESSES:
N/A

DECISION:
Full hearing on Daubert issues with emphasis on Judge Pollack's earlier reversal.  Defense contended that Pollack's decision applied only in cases where F.B.I. fingerprint witnesses were called to appear, and that local police experts did not meet Daubert criteria.  The defense motion to exclude expert fingerprint  analysis evidence and testimony was denied.  

 State of New Hampshire v. Uno Kim   Docket #’s:  03-S-1196; 1197

 DATE and LOCATION of DAUBERT HEARING:
July 21, 2004;  Hillsborough County Superior Court (Northern District), Manchester, New Hampshire

 JUDGE:
Hon. Carol Ann Conboy, NH Superior Court Judge

 ATTORNEYS:
Prosecution:  NH Attorney General’s Office:  
Michael A. Delaney, Esq. and Simon Brown, Esq.
Defense:  
Lee E. Topham, Esq. and Caroline L. Smith, Esq.

 
GOVERNMENT WITNESSES:
Stephen Meagher, Federal Bureau of Investigation
Marc Dupre,
New Hampshire State Police Forensic Laboratory

DEFENSE WITNESSES:
None

DECISION:
In February of 2003, two brothers were discovered dead in their home.  Gury and Theodore Joseph we drugged, bound with plastic cable ties and strangled.  All but one of the cable ties were removed and taken from the scene.  One cable tie however was left around one of the brother’s ankles, partially concealed by his pant cuff.  A latent impression was developed on the cable tie and subsequently identified as that of Uno Kim.  In the defense’s motion, they conceded that an expert may testify that the latent print on the cable tie is “consistent with” that of the defendant’s prints.  However, the defense challenged the introduction of expert testimony that the latent impression is, in fact, the fingerprint of the defendant “to the exclusion of all others.”  The court found that the state’s expert shall be allowed to offer expert testimony that the latent fingerprint discovered on the cable tie is the fingerprint of the defendant to the exclusion of all others.  Additionally, the court found that the defense’s challenge to the “subjectivity” of the ACE-V method and the accuracy or reliability of particular test results go to the weight and credibility of the evidence, not its admissibility.  The defendant was found guilty of First Degree Murder.

State of New Hampshire v. William J. Sullivan, Jr.,   Docket #’s:  03-S-1635; 1636; 1637

DATE and LOCATION of DAUBERT HEARING:
June 2, 6, 9, 2005
Hillsborough County Superior Court (Southern District), Nashua, New Hampshire

JUDGE:
Hon. Gary E. Hicks, NH Superior Court Judge

ATTORNEYS:
Prosecution:    NH Attorney General’s Office:
N. William Delker, Esq. and Kirsten Wilson, Esq.
Defense:     Paul J. Garrity, Esq. and Richard Monteith Jr., Esq.

GOVERNMENT WITNESSES:
Stephen Ostrowski, New Hampshire State Police Forensic Laboratory

DEFENSE WITNESSES:
Simon Cole, University of California, Irvine

DECISION:
In August of 2003, William Sullivan, a teenager from Connecticut, and his juvenile girlfriend plotted to murder the girl’s mother.  After several failed attempts of poisoning and arson, William Sullivan beat and stabbed Jeanne Dominico to death in her home.  There was one bloody simultaneous fingers impression and one bloody palmprint impression on the freezer door.  These impressions, along with a latent impression developed on a baseball bat, were identified as having been made by William Sullivan.  At the hearing, Simon Cole testified that experts generally do not testify as to the uniqueness of a defendant’s fingerprints but rather as to whether the defendant was the source of a latent fingerprint.  He stated that there are no empirical studies on the accuracy of latent fingerprint examiners nor has there been a validation study done on the practice of latent print identification.  Simon Cole also acknowledges that any acclaimed error rate will be contested by one party or the other.  After a combined 11+ hours of testimony over a three-day period, Judge Hicks ruled that “the ACE-V methodology is the product of reliable principles and methods.”  The state was allowed to offer expert testimony regarding fingerprint identifications.  The court also stated that “the ‘subjectivity’ of the standards for determining when a sufficient match is made under the ACE-V methodology goes to the weight and credibility of the evidence and not its admissibility.”  Simon Cole did not testify at trail.  The defendant was found guilty of First Degree Murder.

 
 

 



 
 

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