Daubert Hearing Essay, Research Paper

From the early days, with little literary reference material, to the current day, with substantially more, but still insufficient formation, the science of fingerprint identification has managed to maintain its credibility and usefulness. Although, academic institutions have yet to recognize the field as an applied science and include it in the curricula, which would provide directed research and literary reference, in libraries. Without this academic recognition, progress in the field of fingerprint is destined to be sluggish. Description of fingerprint identification as a forensic science’ or an ~app1ied science’ in no way implies that is not a reliable science. Fingerprint identification, correctly understood and applied, is just as scientifically valid and reliable as any other science and, indeed, more accurate than many. The fingerprint expert applies knowledge gained through training and experience to reach a conclusion. The many uses of fingerprint identification range from criminal investigation to non-criminal matters such as deceased, missing persons and disaster victim identification. Fingerprint identification has been used in the court systems for many years. Yet there are those who that still try to challenge fingerprint science and the experts in the court of law by a Daubert Hearing. In this paper, Daubert Hearing is define and detail outing background of the cases, the Government preparation, the Testimony from both sides, the judge’s verdict and finally, Mitchell’s second trial on this case.

A Daubert Hearing is a term from a civil case entitled Daubert v.Merrell Dow

Pharmaceuticals ,113s. Ct. 2786 (1993). This was the first such case to be brought to court challenging the science of fingerprints. The court accepts the admissibility of scientific evidence in Federal court, and many state and local jurisdictions have adapted to this. Daubert’s opinion states that: the Federal Rules of Evidence superseded General Acceptance’ tests for admissibility of novel scientific evidence. Prior to the Daubert hearing from 1923 until 1993 the rigid general acceptance’ test, which arose from Ftye v. United States, 293 f2d. 1013 (D.C. Cir. 1923) is at odds with the liberal thrust of the Federal Rules of Evidence. It is the trial judge that must still screen scientific evidence to ensure it is relevant and reliable to be used in the court of law. “The focus, of courts, must be solely on principles and methodology, not on the conclusions they generate.” The court should consider factors but by no means exclusive criteria in fulfilling its responsibilities by 1) Testing and validation of the theory or technique and what are the results 2) Has peer review being done on the theory or technique or publication on such result. 3) What is the known rate of error or potential on the theory or technique, and 4) what is the “general acceptance or widespread acceptance of this theory or technique.

In 1998 the attorneys for Byron Mitchell file a Daubert Hearing Fingerprints. United Stales of America V Byron C. Mitchell in the United Stated District Court for the eastern District of Pennsylvania, Criminal No. 96-00407. This case goes back to 1991 when armed robbery of an armored truck by two subjects with a third subject waiting in a get-away vehicle. Gunfire was exchanged in the robbery and $20,000 was stolen. The (getaway vehicle was dumped in exchange for second vehicle. Mitchell was said to be the driver of the getaway vehicle although not seen armed and did not take part in the actual robbery. The government had strong evidence against him. An anonymous witness left two notes in the first vehicle: each note identifying the color and tag number of the vehicles. The second vehicle was located and belonged to the girlfriend of one of the suspects. The officers processed the first vehicle for latent prints. The result of this found two latent fingerprints identified to that of Mitchell.

During the trial, the defense sought exclusion of the anonymous note and other evidence. The defense wanted to throw out the contents of the note as inadmissible hearsay, and that its admission violated the Confrontation Clause of the Sixth Amendment. The court was able to overrule the objections and the note was admitted. Bryon Mitchell was found guilty and sentenced to 24 years imprisonment, 3 years supervised release, assessment of $150.00 and restitution of $19,100.00. The other two men involved in the robbery were never tried; they died before, the trial in other incidences. On appeal, the decision was reversed holding that admission on the anonymous note was erroneous, and disclosure of the note to the jury had been improper. In determining whether the error was ‘harmless’ or ‘reversible,’ the appeals court addressed the latent fingerprint identification in the context of the jury as ‘struggling with testimony about fingerprints.’

Mitchell’s conviction reversed and remanded for a new trial by the Ninth District of Appeals. In preparing for a new trial (1998), the defense presented a last minute one-page letter, which offers expert witness James A. Starrs, professor of law and Forensic Science at George Washington University Law School. The letter states:” Professor Starrs is an expert in the field of fingerprint analysis and will testify to his opinion that there is no scientific basis ~ a claim of individuality in the matching of fingerprint, and that, as such, the identification made in this case is scientifically invalid,” Mitchell’s attorney filed a motion requesting that a Daubert Hearing be conducted on the fingerprint evidence. The judge decided to hold Daubert Hearing to establish the scientific basis for fingerprint identifications.

Potential experts met at the Hoover Building in Washington fl DC, on March 1999 for a strategy session and hearing preparations. These included the following David R. Ashbaugh, David L. Grieve, Robert J. Hazen, (retired FBI), Pat A. Wertheim, (Forensic Identification Training Seminars), Kenneth R. Moses, (retired San Francisco PD) Edward R German, (US Army Criminal Investigation laboratory), and Kenneth 0. Smith, (US Postal Inspection Service), Carey L. Chapman, US Secret Service; and Stephen Meagher (FBI). Others from the original case in 1991 were involved also in the preparation. With these people, the government began preparation for the Daubert Hearing by developing a strategy for each Daubert element and identifying key witnesses for each subject matter.

They began by conducting a survey of all 50 states, Canada and Great Britain to prove General Acceptance. What they did was conducted a statistical study with 50,000 prove fingerprints to provide quantitative assessment. With this effort they wanted to bring the worldwide use of fingerprint into the hearing. Also, to bring individuals outside the FBI into the hearing with their knowledge and expertise in the field of fingerprint. Numerous strategy sessions were held with selected groups of individuals. One of the most intense studies was the 50K statistical study. Lockheed Martin Corporation, under the direction of the FBI, conducted a 50K vs.50K fingerprint comparison study.

First 50,000 left sloped loop as determined by the automatic classifier including references with white males only. Using the International Automated Fingerprint System5~ the FBI fingerprint system machine, they used matcher algorithms to run each fingerprint against the 50K file. By using the level two details only, which is ending ridges and bifurcations. The first was comparing fully recorded fingerprint, which is the same as known print. With this 2.Sbillion comparison was done as a result.

The second study 21.7% of fully recorded fingerprint of simulated latent print gave a result of 2.5 billion comparisons. The conclusions of these were the first test the probability of a non-mate rolled fingerprint being identical to any particular fingerprint is less than l/l097. The study was able to show the world’s population of 5,900,000 individuals times 10 fingers equals 59,000,000,000 fingers. This show the probability of any two fingers being the same is 59/1088, or I chance in 1086. The second part to the 50K study concluded the probability of a minutiae subset of a non-mate fingerprint being identical to a minutiae subset of any particular fingerprint is less than 1/1027 for a small number of minutiae decreasing to less than 1/10 for large number of minutiae. Again, with the world’s population of 5.9 billion, that is 59 billion fingers, the probability of any two fingerprints being the same is 59/1018, or one chance in 1016 Proving the General Acceptance this survey was done in three parts. Part A was proving whether two different individuals have ever been determined to have the same fingerprints, and does the agency accept fundamental principles of uniqueness and permanent. This was all done with a survey of ten prints to ten prints. Part B was Automatic Fingerprint Identification System (AFIS). This was computerizing demonstrating that amongst the millions of fingerprint records on file, no other individual has the same fingerprints. Part C demonstrated “General Acceptance” of fingerprint as a means of personal identification for almost 100 years and that over this time no two have the same fingerprints. Another important area was the Government Testimony in the hearing of physiology of the human friction ridged skin and the development of DNA through genetics. Although identical twins carry the same basic heredity unique to everyone, twins do have the same DNA, but different frieton ridge skin.

The government experts were to reconfirm the fact that fingerprints are unique to individual and are permanent, and that the identifications are grounded in scientific principles. Various publications and articles listed most of the references materials along with expert opinions form from years of experience. Among them were Sgt, David Ashbaugh who had 31 years of law enforcement experience, 25 of which has been spend working and researching in the fingerprint field and considered a qualified expert in the field. He is also an author of books Quantitative- Qualitative, Friction Ridge Analysis and Introduction to Basic and Advanced Ridgeology. Stephen B. Meagher is a Latent Print Unit Chief in the Forensic Analysis Section of the FBI’s Laboratory Division. With his 27 years of experience he is a qualified expert and is a Lead Specialist of the FBI Disaster Squad. His testimony was centered on the ‘General Acceptance’ and ~Number of Points’ issues and computer and statistical data. David one Grieve 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. Pat A Wertheim has over 23 years in law enforcement and many years experience in the fingerprint field, and is a qualified expert. Kenneth R. Moses has over 27 years experience in the fingerprint field and is a qualified expert. Bruce Budowle is an expert in genetics, population genetics, statistics, quality assurance and validation of forensic science applications.

Special Agent Edward Raymond German has 28 years experience and is a qualified expert in the fingerprint field. Kenneth 0. Smith has over 33 years experience and is a qualified expert in the fingerprint field. He is presently a Senior Forensic Latent print Analyst a t the U.S. Postal Inspection Service’s National Laboratory in Virginia.

The Hearing was presided over by the Honorable J. Curtis Joyner there was no jury. The Government’s attorney was Paul Sarmousakis while the defense is Attorney was Leigh Skipper and three others. The courtroom was equipped pith audio video equipment and a computer system used to demonstrate exhibits. The government’s witnesses were presented over three days. The defense witnesses were presented over two days. One of the first things explained was the term “fingerprint”. This was described as the arrangement of friction ridged skin on the fingers and the palms. This was emphasized as a permanent ridged of skin that takes place during the gestation period of the human skin development. Fingerprint was again explained in more details to establish the individuality of each person’s finger uniqueness and permanence.

The government’s attorney argued the fact that millions of fingerprint comparisons are performed by thousands of law enforcement agencies worldwide everyday and that it constituted a kind of testing in itself. Whereas, fingerprint advocates could not exactly go out and compared prints for every finger in the world in order to prove the uniqueness hypothesis. Mr. Sarmousakis further drew attention to a twin that although the fingerprints of identical twins are “more similar” than those of fraternal twins or unrelated individuals, they are still different. He stressed the point that if identical twins do not have identical fingerprints then we might assume that no one does.

Another area that was explained was the friction ridge comparative process, which the objective is to identify the finger, which is responsible for depositing the latent impression on the evidence. This method is in four major steps 1) analysis 2) comparison 3) evaluation 4) verification. This scientific method for performing friction ridge comparisons is the same that is used by many other scientific comparative processes. Again this was explained in detail for each step.

The error rate for the science of friction ridge being unique and permanent is zero because of the random development of the friction ridges. By each department following the scientific methodology of analysis, comparison, evaluation and verification, the error rate remains zero. It was noted that fingerprints have been accepted and used in the United Stated courts since the early 1900’s e.g.. People v. Jennings, 252 111. 534, 96 N.E. 1077 (1911).

In 1924, the FBI began using fingerprint to maintain fingerprint of criminals and in 1933 began conducting latent print examinations to support criminal investigations. Again, the government showed the overpowering evidence of this acceptance: for over 100 years, there have never been found two different persons to have the same fingerprint. Various surveys and exhibits were shown which confirmed the overwhelming acceptance of fingerprint science. Statistical data studies as far from 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 friction ridge arrangement. The FBI had done their own statistical analysis of its approximately 35 million automated criminal ten-print fingerprint repository. This was presented in the hearing. The defense on the other hand, disagreed with all the above arguments. The defense said the statistical models were flawed and maintained, noting that none had been empirically tested. The argument about twins did not address the problem of forensic identification namely whether fragments of two different fingerprints might accidentally match.

The Daubert hearing failed to strike down fingerprint by persuading the judge to bar expert testimony against the scientific standing of fingerprint; the prosecution effectively won the Daubert hearing. The judge granted the government’s request to admit latent fingerprint examiners’ testimony under Fer. R. Evid. 702 and the Supreme Court’s holdings in Daubert and Kumho. Also granted was the concept that human friction ridges are unique and permanent and the arrangements are unique and permanent. Positive identifications can result from comparisons of friction ridge skin or impressions containing sufficient quality (clarity) and quantity of unique friction ridge details. The judge ruled that the government can present expert testimony as to the fingerprint identification made of latent thumb print found on the outside door handle and on the gear shift knob of the getaway car used in the Mitchell armored truck robbery. The Court granted the government’s request to exclude the testimony of the defendant’s experts James E. Stairs, a Professor at George Washington University Law school, David a. Stoney, Ph. D. of the McCrone Research Institute, Chicago, and Simon a. Cole, Ph.D. these witnesses testified that fingerprint evidence and comparisons are not scientific evidence under Daubert.

Byron C. Mitchell was once again at his second trial for driving the getaway car relating to an armored truck robbery that occurred in Philadelphia, Pennsylvania, Unit Chief S. Meagher and supervisory F.D. Johnson from the FBI fingerprint specialist testified. The defense, on the other hand, stipulated to the other 67 examiners from 31 states, England and Canada, as having made both of the latent print identifications. The defense presented thirteen Fingerprint Examiners from the nine states that did not effect the two latent print identifications during the initial submission of the survey for supporting “General Acceptance.” All thirteen examiners effected the identification for both of the latent prints after the follow up of the survey. Except for one examiner who stated that he was unable to reach a conclusion for one of the latent prints. All the prosecution and defense witnesses testified for hours and days in the trial. In the end, the jury heard eighty-one examiners, made the identification on one of the latent prints with Mitchell, and eighty examiners made the identification on the second latent print of Mitchell. The difference was one individual who could not reach a conclusion. After about less than three hours of jury deliberation, the jury had a verdict of guilty on all three counts of conspiracy, robbery, and use of firearm during the commission of a felony.

“The fingerprint discipline has 100 years of history,” Meagher said. “There is extensive documentation to the scientific basis, which has been published, peer-reviewed and challenged many times… It has withstood those challenges.” At least ten other such challenges have been filed since, but none has yet kept fingerprint out of a trail. As a result, Stephen Meagher suggested that judges have recognized fingerprint evidence as meeting Daubert criteria. Today, just about everyone, including attorneys, judges, and jurors, seem to think that fingerprint experts can reliably match latent prints to one and only one source finger. Based on all the evidence, it is a fact that human friction ridge skin is unique, that is to say, no two people now living, or who ever have lived, or who ever will live, can have exactly the minute details of the friction ridge skin across the whole surface of a finger. If we accept the fact that any area of friction skin is unique, then we must agree that each latent print or crime scene mark must also be unique. From this understanding one could correctly say the suspect could have made the unknown print or some other person could have made it. The bottom line is that only one person could leave the unknown print. It is the responsibility of the fingerprint expert performing a comparison to reach this conclusion. Therefore, fingerprint identification is based on sound scientific principles.

Ashbaugh, David R. “Ridgeology.” Journal of Forensic Identification, 1991.

Galton, Francis. Fingerprint, MacMillan and Co., London, 1892.

Herschel, William J. The Origin of Finger-Printing 1916. New York: AMS, 1974.

SCAFO Online Articles. Daubert and fingerprints: The United States of America v.

Bryan C. Mitchell. April- June 2000. http://www.scafo.org/1ibrary/15O4O2.html.

U.S. Department of Justice, Federal Bureau of Investigation. The Expert Fingerprint

Witness. Washington D.C.: U.S. Government Printing Office, 1981.

Bibliography

Ashbaugh, David R. “Ridgeology.” Journal of Forensic Identification, 1991.

Galton, Francis. Fingerprint, MacMillan and Co., London, 1892.

Herschel, William J. The Origin of Finger-Printing 1916. New York: AMS, 1974.

SCAFO Online Articles. Daubert and fingerprints: The United States of America v.

Bryan C. Mitchell. April- June 2000. http://www.scafo.org/1ibrary/15O4O2.html.

U.S. Department of Justice, Federal Bureau of Investigation. The Expert Fingerprint

Witness. Washington D.C.: U.S. Government Printing Office, 1981.