i
TABLE OF CONTENTS
TABLE OF CASES
-iiiSTATEMENT OF INTEREST OF THE AMICI -ixSTATEMENT OF ISSUES -xiSUMMARY OF THE ARGUMENT
-1-
STATEMENT OF THE CASE
-3-
STATEMENT OF FACTS
ARGUMENT
I.
-3-
-4THE TRIAL COURT’S ADMISSION OF THE FINGERPRINT
COMPARISON EVIDENCE IN THIS CASE WAS
PREJUDICIAL ERROR. -4A.
Standard of Review -5B.
The Popular Belief in the Infallibility of
Fingerprint Comparison Evidence.
-61.
Accepting Certain General Principles
Regarding Fingerprints does not Lead
to Acceptance of Fingerprint
Comparisons Methods involving Latent
Fingerprints.
-9C.
The Admissibility of Fingerprint
Comparison Evidence Reached Using a Method
of Examination Known as “ACE-V”.
-131.
Problems in the Analysis and
Comparison Stages. -132.
Problems in the Evaluation Stage.
-153.
Problems in the Verification Stage.
-234.
The Relative Scarcity of Known
Mis-Identifications does not
Demonstrate that the ACE-V method is
ii
D.
E.
CONCLUSION
Sufficiently Reliable.
-27The Court should not Admit the Specific
Fingerprint Comparison in this Case, which
Aggregated Information from Four Separate
Latent Prints which the Examiner Believed
were made Simultaneously.
-37The Expertise and Qualifications of the
Commonwealth’s Testifying Experts.
-44-48-
iii
TABLE OF CASES
Cases
Canavan’s Case, 432 Mass. 304 (2000)
-5-
Commonwealth v. Cintron, 438 Mass. 779 (2003)
-42-
Commonwealth v. Drayton, 386 Mass. 39 (1982) -42Commonwealth v. Lanigan, 419 Mass. 15 (1994) -5--7Commonwealth v. LeClaire, 28 Mass. App. Ct. 932 (1999)
-38Commonwealth v. Loomis, 267 Pa. 438, 110 A. 257 (1920)
-31Commonwealth v. Loomis, 270 Pa. 254, 113 A. 428 (1921)
-31Commonwealth v. Martinez, 437 Mass. 84 (2002)
-7-
Commonwealth v. Montanez, 439 Mass. 441 (2003)
-6-
Commonwealth v. Zimmerman, 441 Mass. 146 (2004)
-7-
Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992)
-32-
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993)
-6-, -8-, -16Ramirez v. State, 801 So.2d 836 (Fla. 2001)
-9-
State v. Behn, 375 N.J. Super. 409, 868 A.2d 319 (2005)
-9State v. Caldwell, 322 N.W.2d 574 (Minn. 1982)
-31-
United States v. Havvard, 260 F.3d 597 (7th Cir. 2001)
-28-
iv
United States v. Hines, 55 F.Supp.2d 62 (D.Mass. 1999)
-8United States v. Mitchell, 365 F.3d 215 (3rd Cir. 2004)
-10-, -16-, -30-, -32-, -33-, -35United States v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y.
1995)
-8United States v. Sullivan, 246 F.Supp.2d 700 (E.D. Ky 2003)
-28Williamson v. Reynolds, 904 F.Supp. 1529 (E.D.Okl. 1995),
overruled other grounds, 110 F.3d 1508 (10th Cir. 1997)
-8-
Statutes
G.L. ch. 211D, §§ 1-16
-x-
Okla. Stat. § 74-150.37
-45-
Treatises
Ashbaugh, QUANTITATIVE-QUALITATIVE FRICTION RIDGE ANALYSIS (1999)
-38--40Barnard, Convicted in Slaying, Man Wins Freedom: An FBI
Investigation Found that Fingerprints at Murder Scene Were
Not those of Richard Jackson, PHILA. INQUIRER, Dec. 14, 1999,
at B1
-34Berkson, The Error of Estimate of the Blood Cell Count as
Made with the Hemocytometer, 128 AM. J. PHYSIOLOGY 309
(1940)
-18Blumenson, 1 MASSACHUSETTS CRIMINAL DEFENSE § 12.6A (1990)
-42-
v
Boring, Newton and the Spectral Lines, 136 SCIENCE 600
(1962)
-18Coit, Santa Rosa woman identified as Vegas slaying victim
turns up alive, THE PRESS DEMOCRAT, Sept. 13, 2002, at A1
-11-, -34Cole, More than Zero: Accounting for Error in Latent
Fingerprint Identification, 95:3 J. CRIM. L & CRIMINOLOGY 985
(2005)
-31Cordaro & Ison, The Psychology of the Scientist: X.
Observer Bias in Classical Conditioning of the Planarian,
13 PSYCHOL. REP. 787 (1963)
-18Dror, et als., When Emotions get the Better of Us: The
Effect of Contextual Top-down Processing on Matching
Fingerprints, 19:6 APP. COGN. PSYCH. 799 (2005) -21Grey, Yard in Fingerprint Blunder, LONDON SUNDAY TIMES, April
6, 1997, at 4 -32Higgins, Fingerprint Evidence Put on Trial, CHI. TRIB, Feb.
25, 2002, at 1 -33Janco, Release of Convicted Killer is Sought, PHILA.
INQUIRER, Nov. 24, 1999, at B1 -34Jofre, Falsely Fingered, GUARDIAN, July 9, 2001, at 16
-34Johnson, Seeing’s Believing, 15 NEW BIOLOGY 60 (1953)
-18Jonakait, Forensic Science: The Need for Regulation, 4 HAV.
J. L. & TECH. 109, 160 (1991) -19Kates & Guttenplan, Ethical Considerations in Forensic
Science Services, 28 J. FORENSIC SCI. 972 (1983)
-20Leadbetter, Fingerprint Evidence Standard Newsletter,
24:94 FINGERPRINT WHORLD, 139 (Oct. 1998) -41-
vi
Lin, Liu, Osterburg, et al., Fingerprint Comparison I:
Similarity of Fingerprints, 27 J. FORENSIC SCI. 290 (1982)
-9McRoberts & Mills, U.S. Seeks Review of Fingerprint
Techniques, CHI. TRIB., Feb. 21, 2005, at A1 -42Miller, Procedural Bias in Forensic Science Examinations
of Human Hair, 11 L. & HUM. BEHAV. 157 (1987) -20Moenssens, FINGERPRINT TECHNIQUES (1971)
-42-, -44-
Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in
Many Guises, 2 REV. GEN. PSYCH., 175 (1998) -17Noble & Averbuch, NEVER PLEAD GUILTY: THE STORY
(1955)
-31-
OF
JACK EHRICH
Plummer, FBI Mistake let Suspected Serial Killer go Free,
ATLANTA J. CONST., May 13, 2005, at A1
-12Plummer, Tracking a Murder Suspect, ATLANTA J. CONST., May
5, 2005, at A1 -12Saltzman & Daniel, Man freed in 1997 shooting of officer,
BOSTON GLOBE, Jan. 24, 2004, at A1
-35Scientific Support Group, FINGERPRINT HISTORY (2000)
-41Snyder, Motivational Foundations of Behavioral
Confirmation, 25 ADVANCES IN EXPERIMENTAL SOC. PSYCH., 67 (1992)
-17Specter, Do Fingerprints Lie?, NEW YORKER, May 27, 2002, at
96
-34Stacey, A Report on the Erroneous Fingerprint
Individualization in the Madrid Train Bombing Case, 54:6
J. FORENSIC IDENTIFICATION 706 (2004)
-22--27-, -35-
vii
Starrs, A Miscue in Fingerprint Identification: Causes and
Concern, 12 POLICE SCI. & ADMIN. 287 (1984)
-25-,
-26Starrs, More Saltimbancos on the Loose? Fingerprint
Experts Caught in a World of Error, 12 Sci. Sleuthing News
1 (1988) -32Thomas, 2 Police Officers are put on Leave, BOSTON GLOBE,
April 24, 2004, at B1
-25Thornton, The One Dissimilarity Doctrine in Fingerprint
Identifications, 306 INT’L CRIM. POLICE REV. 89 (March 1977)
-15United States v. Plaza, 188 F.Supp.2d 549 (E.D. Pa. 2002)
-13-, -16-, -46-, -47Vigh, Evidence Bungled in Slaying, SALT LAKE TRIB., Feb. 19,
2003, at D1
-35Vollmer, Report of Science and Practice Committee, 6
IDENTIFICATION NEWS 1 (1956) -31Weber & Rothstein, Man Freed after 6 Years: Evidence was
Flawed, BOSTON HERALD, Jan. 24, 2004, at 4 -26Wertheim & Maceo, The Critical State of Friction Ridge and
Pattern Formation, 52:1 J. FORENSIC IDENTIFICATION 37 (2002)
-9Woffinden, The Case of the Missing Thumbprint, 12 NEW
STATESMAN 28 (Jan. 8, 1999)
-33Woffinden, Thumbs Down, GUARDIAN, Jan. 12, 1999, at 17
-33Zuckerman, Knee, Hodgins, Miyake, Hypothesis
Confirmation: The Joint Effect of Positive Test Strategy
and Acquiescence Response Set, 68 J. PERSONALITY & SOC. PSYCH.,
52 (1995) -17-
viii
STATEMENT OF INTEREST OF THE AMICI
This amicus brief is filed by the National
Association of Criminal Defense Lawyers (NACDL), the
Massachusetts Association of Criminal Defense Lawyers
(MACDL), and the Committee for Public Counsel Services
(CPCS).
The National Association of Criminal Defense Lawyers
(NACDL) represents both public and private practitioners
in the area of criminal defense. As an organization, it
is deeply concerned with promoting fairness and advancing
due process of law in the administration of justice. It
is particularly concerned with the issue presented in this
case in light of the FBI’s mis-identification of Brandon
Mayfield, an Oregon attorney, as a suspect in the Madrid
bombing.
The Massachusetts Association of Criminal Defense
Lawyers (MACDL) represents both public and private
Massachusetts practitioners in the area of criminal
defense. It is particularly concerned with the issue
presented in this case in light of the errors uncovered
in the case of Stephen Cowans, and subsequent revelations
about problems in the Boston Police Department
Identification Unit.
The Committee for Public Counsel Services (CPCS), the
ix
Massachusetts public defender agency, is statutorily
mandated to provide counsel for indigent defendants in
criminal proceedings.
G. L. ch. 211D, §§ 1-16. This issue
is of immediate importance to CPCS because the
admissibility of this kind of evidence will have a
substantial impact on many cases involving the agency's
clients.
Proper resolution of this issue is essential to
securing accurate verdicts in these cases.
x
STATEMENT OF ISSUES
I.
WHETHER THE COMMONWEALTH HAS MET ITS BURDEN UNDER
COMMONWEALTH V. LANIGAN, 419 MASS. 15 (1994) AND
DAUBERT V. MERRELL DOW PHARMACEUTICALS, 509 U.S. 579
(1993), TO ESTABLISH THE RELIABILITY OF LATENT
FINGERPRINT INDIVIDUALIZATION APPLYING ACE-V
METHODOLOGY TO ALLEGEDLY-SIMULTANEOUS IMPRESSIONS.
1
SUMMARY OF THE ARGUMENT
The
regarding
amici
accept
fingerprint
certain
general
comparisons.
They
principles
accept
that
fingerprints are formed in the fetus and do not change,
apart from growth and scarring during a person’s lifetime.
They accept that, thusfar, no two persons, even identical
twins, have been found to have identical fingerprints.
However, extending these principles into comparison of
latent fingerprints instead of carefully made complete
impressions of the entire fingertip poses a significant
risk of mis-identification. (p. -)
The amici accept the utility of the first two stages
of the ACE-V method: Analysis and Comparison, but raise
questions about suggestion, confirmation bias, and the
inherent pressures of high-profile cases on the Evaluation
stage
and
about
flaws
in
the
Verification
stage,
particularly in light of an FBI report itself effectively
conceding
failure
of
verification
in
a
recent
mis-identification case, and suggesting a need for blind
verification. (p. -)
The amici discuss eighteen known mis-identification
cases in the United States and United Kingdom, only six
of which were mentioned by the parties in the evidentiary
hearing, and suggest that the Court view these cases as
2
the
tip
of
a
much
larger
iceberg
of
mistaken
identifications and flawed convictions. (p. -)
The amici also address the specific question of
simultaneous
impressions,
bringing
to
the
Court’s
attention suggested standards in a treatise used by the
parties and the standard used in the United Kingdom when
it had a 16-point minimum standard for identifications,
suggesting
that
Commonwealth
has
not
adequately
demonstrated that the impressions in this case were made
simultaneously
and,
even
if
the
impressions
were
simultaneous, that the comparison data found is inadequate
for an identification. (p. -)
Finally, the amici address the qualifications of the
Commonwealth’s experts in light of the analysis in United
States v. Plaza, 188 F.Supp.2d 549, 551 (E.D. Pa. 2002)
and suggest that the Commonwealth has not demonstrated
that its experts are sufficiently qualified to testify in
this case. (p. -)
STATEMENT OF THE CASE
The amicus adopts Terry L. Patterson’s (hereinafter
sometimes referred to as Patterson) statement of the case.
This Court solicited amicus briefs by order of June
13, 2005. The Amici’s Motion for Leave to file this brief
is pending before this Court.
3
STATEMENT OF FACTS
The Amicus also adopts Patterson’s statement of the
facts in this case.
In the first trial in this case, Boston Police Officer
Robert Folib of the Identification Unit testified that he
had found four latent print impressions on the driver’s
door window of an automobile that belong to the victim,
John Mulligan. (Ex. 47 at 5-72 to 5-94) Folib was unable
to make an identification using any individual impression.
He theorized that all four impressions had been made
simultaneously by the same hand. (Ex. 47 at 5-84) He found
six, five, two, and zero points of similarity between the
latent prints and the exemplar of Patterson’s
fingerprints. (Ex. 47 at 5-82 to 5-83, 5-85, 5-94) He
concluded these were sufficient points of comparison to
make an identification.
The Commonwealth seeks to offer identification
testimony in the second trial in this case from State
Trooper Kenneth Martin, using the same theory of
simultaneous impressions that Folib had used. The FBI had
also reviewed the impressions, and concluded that most
were of no value. (Letter from FBI to Martin dated Feb.
17, 2005, see Add. at A28)
ARGUMENT
4
I.
THE TRIAL COURT’S ADMISSION OF THE FINGERPRINT
COMPARISON EVIDENCE IN THIS CASE WAS PREJUDICIAL
ERROR.
In this case, Patterson challenges four aspects of
the fingerprint evidence presented in his case. He
challenges: (1) the admissibility of fingerprint
comparison evidence generally, (2) the admissibility of
fingerprint comparison evidence reached using a method of
analysis known as “ACE-V”1, (3) the admissibility of the
specific fingerprint comparison in this case, which
aggregated information from four separate latent prints
which the examiners believed were made simultaneously; and
(4) the expertise and qualifications of the Commonwealth’s
testifying experts2 This Court should consider the qualifications
and conclusions of the Commonwealth’s experts in reviewing this case.
The amici include a brief discussion of qualifications in this brief..
A.
Standard of Review
The Commonwealth has the burden of establishing the
The amicus assumes that this Court is familiar with the explanation of
ACE-V as set forth in the parties’ briefs and record.
1
The parties excluded specific challenges to the particular identification
testimony in their hearing. (Br. 2) The Reservation and Report in
the instant case is focused on the reliability of the ACE-V
methodology applied to simultaneous impressions.
(Reservation and Report dated 1/14/05).
2
5
admissibility of the challenged expert testimony in this
case. Canavan’s Case, 432 Mass. 304, 314 (2000);
Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994). The trial
court has a gatekeeper role in ruling on Patterson’s
challenge to this testimony. Commonwealth v. Lanigan, 419
Mass. 15, 26 (1994).
The trial court, after an evidentiary hearing,
reviewed Patterson’s Motion in Limine to Exclude
Fingerprint Evidence under Commonwealth v. Lanigan, 419
Mass. 15, 26 (1994) and Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). It concluded that
the ACE-V method in general and as applied to simultaneous
impressions was sufficiently reliable to be admitted at
trial for consideration by the jury. (Order dated 10/7/04;
Order dated 11/29/04)
This Court reviews the trial court’s decision to
admit the Commonwealth’s fingerprint experts’ testimony
for error, and, if error is found, for whether it was
sufficiently prejudicial to have harmed the defendant. See
Commonwealth v. Montanez, 439 Mass. 441, 450 (2003).
B.
The Popular Belief in the Infallibility of
Fingerprint Comparison Evidence.
Fingerprint comparison has become a synonym for
reliability. Proponents of other identification methods
6
refer to their methods as “DNA fingerprinting” or
“ballistic fingerprinting” in order to invoke an aura of
dependability and certainty. Patterson poses an
unsettling question — what if the popular mythology is
wrong? What if fingerprint comparisons are more prone to
error, suggestion, and bias, than anyone had realized?
What if fingerprint comparisons are more akin to polygraph
examinations, which are inadmissible in Massachusetts
criminal cases, Commonwealth v. Martinez, 437 Mass. 84,
88 (2002) and eyewitness identification, the perils of
which are well known, see e.g. Commonwealth v. Zimmerman,
441 Mass. 146 (2004) (expert testimony on cross-racial
identification), than to DNA identification? When should
this Court permit experts to testify about fingerprint
comparisons?
The amici, having considered the evidence put forth
by the parties, mis-identification cases not discussed by
the parties, and the literature in this field, conclude
that trial courts should skeptically analyze fingerprint
comparison methods in general, and as applied to the
evidence in their cases, in order to fulfill their
gatekeeper role under Commonwealth v. Lanigan, 419 Mass.
15, 26 (1994) and Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993). The Commonwealth’s proof in this case
7
fails to adequately address key concerns about fingerprint
comparison evidence. It’s experts testimony should
therefore be rejected.
The Commonwealth relies on a century of judicial
acceptance of fingerprint comparison evidence. (CBr. 17;
Commonwealth’s Preliminary Memorandum in Opposition at 8,
13) However, in a number of fields, courts have discovered
that modern scientific inquiries have raised questions
about long-accepted assumptions and methods. See e.g.
United States v. Hines, 55 F.Supp.2d 62, 68-71 (D.Mass.
1999) (limitation on handwriting comparison evidence);
Williamson v. Reynolds3, 904 F.Supp. 1529, 1555-58
(E.D.Okl. 1995) (hair comparison), overruled other
grounds, 110 F.3d 1508 (10th Cir. 1997);
United States
v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y. 1995)
(handwriting comparison); Ramirez v. State, 801 So.2d 836,
849-52 (Fla. 2001) (toolmark evidence under Frye test);
State v. Behn, 375 N.J. Super. 409, 868 A.2d 319 (2005)
(bullet lead analysis). Until recently, fingerprint
comparison evidence has generally been accepted without
Ironically, both the Williamson and Starzecpyzel courts assume that
fingerprint comparisons are more reliable than the techniques challenged
in those cases; no challenge to fingerprint evidence was made in those
cases.
3
8
question or critical review. Unquestioning acceptance
does not prove the doctrine’s reliability; the Court
should examine the Commonwealth’s proof with a skeptical
eye given the critical role of fingerprint evidence in this
case.
1.
Accepting Certain General Principles Regarding
Fingerprints does not Lead to Acceptance of
Fingerprint Comparisons Methods involving Latent
Fingerprints.
The amici do not dispute certain general principles
regarding fingerprint comparisons. Friction ridge
patterns on the fingers, palm, toes, and soles of the feet
are formed in the fetus based in part on genetics and in
part on random growth during gestation. (T. 2-130, 2-156
to 2-159) See also Wertheim & Maceo, The Critical State of Friction
Ridge and Pattern Formation, 52:1 J. FORENSIC IDENTIFICATION 37 (2002);
Lin, Liu, Osterburg, et al., Fingerprint Comparison I: Similarity of
Fingerprints, 27 J. FORENSIC SCI. 290 (1982). Even identical twins, who
share the same DNA, have different fingerprints. (T. 2-159 to
2-162) The distinctive characteristics of one person's
fingerprints do not change over time (apart from
readily-explainable changes such as growth and scarring).4
The amici do not concede the validity of the FBI’s “50/50 study”.(T. 3-71
to 3-79), believing it to be deeply flawed for the reasons set forth in the
4
9
Here, as in many criminal cases, however, the
examiner is not matching two carefully-made, complete
fingerprints. Instead, the latent impression was made by
chance. The examiner formed his opinion based upon small
elements of the entire pattern.5 There has not been
sufficient research into the possibility of chance
resemblance between portions of a fingerprint, or about
how small a portion of a fingerprint is needed to form an
opinion about a comparison to satisfy a court that such
comparisons are reliable.
Moreover, the parties’ witnesses both recognize that
whenever the three-dimensional pattern on the curved
surface of a finger is placed on a two-dimensional surface
such as a fingerprint scanner, 10-print card, or the car
door in the instant case, some minor distortion is
inevitable.6 (See T. 1-46) No two rolled or scanned prints
are 100% identical. (T. 2-55 to 2-56, 3-136) A
mis-identification is possible, even when the examiner is
testimony of Dr. Stoney at Ex. 64
The Mitchell court noted that a typical latent print is 1/5th the size of a
rolled or scanned exemplar. United States v. Mitchell, 365 F.3d 215, 221
(3rd Cir. 2004).
5
At minimum, the distortion is akin to that cartographers encounter when
trying to represent a round globe on a flat map.
6
10
working with a full ten-finger set of exemplar prints. In
2002, for example, the Las Vegas police erroneously
identified a corpse as a missing woman; after the body had
been sent to her family for burial, the missing woman
turned up alive.
Coit, Santa Rosa woman identified as
Vegas slaying victim turns up alive, THE PRESS DEMOCRAT, Sept.
13, 2002, at A1. The FBI’s automated fingerprint database
erroneously did not find a match between prints taken at
four separate arrests of the same man under an alias and
earlier prints taken under the suspect’s true name,
allowing the man to be released and commit four murders.
See Plummer, FBI Mistake let Suspected Serial Killer go
Free, ATLANTA J. CONST., May 13, 2005, at A1; Plummer,
Tracking a Murder Suspect, ATLANTA J. CONST., May 5, 2005,
at A1.
Explainable “dissimilarities”7 between exemplar
prints and latent prints due to distortion do not affect
an examiner’s conclusion regarding an identification. (T.
3-100) An unexplainable dissimilarity not due to
distortion is labeled a “discrepancy”; one discrepancy is
Such dissimilarities can arise from the pressure used when the print is
deposited on the surface, by lateral pressure, by the surface or substrate
itself, by the method used to make the print visible, and by the method
used to preserve the visible print. (T. 3-101 to 3-102)
7
11
sufficient to prevent an examiner from concluding the
latent print and exemplar match. (T. 3-100) As discussed
below, the subjective aspect of labeling a dissimilarity
as either a harmless distortion or an important
discrepancy is a key issue in determining whether
fingerprint comparison evidence is reliable.
In sum, the amici accept the basic premise that human
fingerprints are unique and unchanging during a person’s
life, but question the ability of fingerprint examiners
to reliably compare latent prints with rolled exemplars
and question the subjective nature of resolving inevitable
distortions of the actual fingerprint pattern and the
exemplar or latent print.
C.
The Admissibility of Fingerprint Comparison Evidence
Reached Using a Method of Examination Known as
“ACE-V”.
The parties apparently agree that both Officer Folib
and Trooper Martin used the fingerprint examination method
known as “ACE-V” (Analysis, Comparison, Evaluation,
Verification) in their analysis. ACE-V is described in the
parties’ briefs and in testimony. In addition to the
descriptions of ACE-V in the testimony, the Court may wish
to consider the summary found in United States v. Plaza,
188 F.Supp.2d 549, 551 (E.D. Pa. 2002).
12
1.
Problems in the Analysis and Comparison Stages.
At the analysis stage, the examiner looks first at
the latent print. (T. 3-47) Once he or she has identified
key elements in it, the examiner turns to the known
exemplar. Once both prints have been analyzed, then the
examiner begins to compare the two prints.
The amici do not dispute the utility of the ACE-V
sequence of analysis and comparison. As set forth below,
the amici have concerns about the subjective nature of the
decision to label a difference between the latent print
and exemplar as a dissimilarity or a discrepancy.
Here, Officer Folib testified that he compared the
latent prints to known prints and submitted the prints to
AFIS8. (Ex. 47 at 5-72, 5-77) His testimony implies that
he analyzed the latent prints before looking at known
prints. The Commonwealth did not introduce testimony about
how Trooper Martin analyzed the latent and exemplar
prints. Absent such testimony, the Commonwealth has not
yet shown that Trooper Martin properly applied the ACE-V
method. Absent such testimony, there is no basis upon which
this Court can conclude that Trooper Martin’s testimony
would be reliable.
AFIS (Automated Fingerprint Identification System) is a database of
exemplar prints taken from persons during an arrest.
8
13
2.
Problems in the Evaluation Stage.
At the evaluation stage, the expert looks at the
quality and quantity of the comparisons. The most
important point at this stage is the examiner’s
attribution of differences between the latent print and
the exemplar to explainable, harmless distortions, and
inexplicable discrepancies. A single unexplained
discrepancy between the latent print and a known exemplar
is sufficient to prove conclusively that the exemplar was
not the source of the latent print. See Thornton, The One
Dissimilarity Doctrine in Fingerprint Identifications,
306 INT’L CRIM. POLICE REV. 89 (March 1977) (suggesting that
latent fingerprint examiners will routinely make up
explanations regarding distortions so as to explain away
differences in prints once the examiners have become
convinced that the prints were made by the same finger).
The Mitchell court was concerned about the standards
for fingerprint comparison, noting that they were
“insubstantial in comparison to the elaborate and
exhaustively refined standards found in many scientific
and technical disciplines.” United States v. Mitchell, 365 F.3d
215, 241 (3rd Cir. 2004).
The Plaza court also expressed concern about
fingerprint comparisons. The trial court wrote that:
14
The Daubert difficulty with the ACE-V process
is by no means total. The difficulty comes into
play at the stage at which, as experienced
specialists * * * themselves acknowledge, the
ACE-V process becomes “subjective” — namely,
the evaluation stage. By contrast, the
antecedent analysis and comparison stages are,
according to testimony, “objective” analysis of
the rolled and latent prints and comparison of
what the examiner has observed in the two
prints. Up to the evaluation stage, the ACE-V
fingerprint examiner’s testimony is
descriptive, not judgmental.
United States. v. Plaza, 188 F.Supp.2d 549, 552 (E.D. Pa.
2002) quoting United States v. Plaza, 179 F. Supp. 2d 492
(E.D. Pa. 2002), withdrawn from bound volume and opinion
vacated and superseded on reconsideration.
The parties in this case did not explore the
fundamental problem in any subjective comparison with the
psychological phenomena known as “confirmation bias”,
which the FBI found to be a factor in the Brandon Mayfield9
Subsequent to the evidentiary hearing in this case, the FBI misidentified
Mr. Mayfield as the source of a fingerprint found on evidence in a terrorist
bombing in Madrid, Spain. The circumstances of that case are discussed
below.
9
15
misidentification case. In brief, if the examiner has a
prior belief or expectation that two fingerprints will,
or will not, match, then two potential psychological
biases arise. "Cognitive confirmation bias" is a tendency
to seek out and interpret evidence in ways that fit
existing beliefs. "Behavioral confirmation bias,"
commonly referred to as the self-fulfilling prophecy, is
a tendency for people to unwittingly procure support for
their beliefs through their own behavior. Nickerson,
Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 REV.
GEN. PSYCH., 175 (1998); Snyder, Motivational Foundations of
Behavioral Confirmation, 25 ADVANCES IN EXPERIMENTAL SOC. PSYCH., 67
(1992); Zuckerman, Knee, Hodgins, Miyake, Hypothesis Confirmation:
The Joint Effect of Positive Test Strategy and Acquiescence Response
Set, 68 J. PERSONALITY & SOC. PSYCH., 52 (1995). The danger of
confirmation bias affecting an examiner’s subjective
opinion was rarely discussed in the fingerprint
examination literature prior to the FBI’s recent report
on the Mayfield error.
Confirmation bias has caused famous scientists to
fail to report easily visible phenomena that don’t fit
their expectations. See e.g. Boring, Newton and the
Spectral Lines, 136 SCIENCE 600, 600-01 (1962) (Sir Isaac
Newton’s failure to note absorption lines clearly visible
16
in his apparatus that did not conform to his theory).
Expectations have caused laboratory workers to
unconsciously conform test results to an expected norm.
Berkson, The Error of Estimate of the Blood Cell Count as Made with the
Hemocytometer, 128 AM. J. PHYSIOLOGY 309, 322 (1940); Johnson,
Seeing’s Believing, 15 NEW BIOLOGY 60, 79 (1953); Cordaro & Ison, The
Psychology of the Scientist: X. Observer Bias in Classical Conditioning of
the Planarian, 13 PSYCHOL. REP. 787 (1963). This phenomena may
cause examiners to overestimate the quality of a latent
print, or attribute a discrepancy to an explainable
distortion, when they have external reasons to expect a
match, and to underestimate the quality of an image or
regard an explainable distortion as a discrepancy when
they have external reasons to expect a non-match. So long
as the criteria is subjective, confirmation bias may be
impossible to avoid.
Confirmation bias can play a significant role in
distorting test results regardless of the validity of the
underlying theory. Evidentiary matter may be presented to
forensic scientists in a suggestive manner. See Jonakait,
Forensic Science: The Need for Regulation, 4 HAV. J. L. & TECH. 109, 160
(1991). The examiner may be given crime scene evidence,
autopsy evidence, and a fingerprint exemplar clearly
labeled as the suspect’s. See id. This may be accompanied
17
by a written or oral synopsis of the reasons the
investigator believes the suspect is guilty or a
description of a suspect’s prior record for similar
offenses. Id. This suggestiveness, coupled with the
understandable prosecution sympathies of many examiners
(See e.g. T. 4-26 (Meagher “consider[s] a crime laboratory
to be a forensic science arm of the law enforcement
role.”)), may skew, unconsciously, subjective judgments.
Miller, Procedural Bias in Forensic Science Examinations of Human Hair,
11 L. & HUM. BEHAV. 157, 158 (1987); Kates & Guttenplan, Ethical
Considerations in Forensic Science Services, 28 J. FORENSIC SCI. 972,
972, 975 (1983). Confirmation biases may lead the examiner to
subconsciously attribute more significance to ridge
details that support the police theory-of-the-case and
attribute details that conflict with the police theory to
explainable distortion.
One illustration of the confirmation bias problem
occurred in a 1987 experiment involving hair samples.
Students who were given hair samples from a crime scene
and a suspect in a suggestive manner had a 30.8% error rate;
students who were given hair samples from a crime scene
and from five possible suspects had a 3.8% error rate. Miller,
Procedural Bias in Forensic Science Examinations of Human Hair, 11 L. &
HUM. BEHAV. 157, 160-61 (1987) (The crime scene sample did not match
18
any of the other submitted samples; the correct answer was “no match”.)
There are limitations in a comparison between college
students and experienced technicians and between
comparing hair to comparing fingerprints; however, the
magnitude of the change in false positive results in this
study provides reason for concern when an examiner is given
suggestive information before reporting his or her
results.
Recently, a study explored whether fingerprint
identifications could be manipulated with emotional
information about the crime designed to bias the
examiner’s judgement. See Dror, et als., When Emotions get
the Better of Us: The Effect of Contextual Top-down
Processing on Matching Fingerprints, 19:6 APP. COGN. PSYCH.
799 (2005). Dror found that his subjects were affected by
the manipulation and were more likely to find
identifications when the latent fingerprint was
ambiguous. Id. Dror was unable to induce his subjects to
find a match with clearly non-matching fingerprints. Id.
This study also has limitations; Dror’s subjects were
students, not trained fingerprint examiners. However, the
study offers further proof that emotional context and
subtle suggestion can affect subjective judgments.
Because the hearing in this case was held before the
19
FBI’s report explaining its error in Mayfield’s case was
published, the parties did not address the question of
confirmation bias. It is, however, a valid concern for this
Court. The Commonwealth failed to explain how confirmation
bias was avoided or accounted for in Officer Folib and
Trooper Martins’ analysis and either their testimony
should not be allowed in this case or the case should be
remanded for a hearing on this point.
In its report on the Mayfield error, the FBI also
concluded that “the inherent pressures of working on an
extremely high-profile case . . . was thought to have
influenced the examiner’s initial judgment and subsequent
examination.” Stacey, A Report on the Erroneous
Fingerprint Individualization in the Madrid Train Bombing
Case, 54:6 J. FORENSIC IDENTIFICATION 706, 713 (2004)
(hereinafter “Stacey”). It concluded that the
verification process was tainted by the “inherent pressure
of such a high-profile case” and recommended a new quality
assurance rule regarding high-profile or high-pressure
cases. Id. at 713, 716. In effect, the FBI conceded that
there is a problem with the ACE-V method; the likelihood
of human error is increased in certain cases, thus a new
procedure is needed.
In the instant case, Patterson is accused of the
20
murder of a police officer. It is difficult to imagine a
more high-profile or high-pressure situation facing an
examiner, particularly Officer Folib, who had been a
member of the Boston Police Department for fifteen years.
(Ex. 47 at 5-58)
The Commonwealth has not addressed the effects of the
nature of this case on Officer Folib and Trooper Martin’s
analysis. Absent such testimony, there is no basis upon
which this Court can conclude that the Commonwealth’s
experts testimony would be reliable.
3.
Problems in the Verification Stage.
The trial court concluded that Mr. Meagher’s attitude
towards disagreement between examiners “shows little
tolerance for dissent and suggests to this court that
examiners may be subtly pressured to ratify prior
individualizations”.10 (Order dated 10/7/04 at 21) It
concluded that “the verification step of ACE-V constitutes
a disturbing flaw in the present methodology.” Id. The
amici agree, but believe that the flaw is much more
significant than the trial court realized.
Patterson’s expert contended that the verification
Or, as an FBI report on its internal verification process in a
misidentification case noted, “To disagree was not an expected
response”. Stacey, supra. at 713.
10
21
step of ACE-V is vulnerable to subconscious influences,
such as confirmation bias, which would prevent the
examiner from reaching an independent conclusion. (T. 1-37
to 1-38)
In three mis-identification cases, those of Brandon
Mayfield, Stephen Cowans, and Roger Caldwell, the
erroneous identification was verified within the
respective agencies. Stacey, supra. at 713; Thomas, 2
Police Officers are put on Leave, BOSTON GLOBE, April 24,
2004, at B1 (police examiners who misidentified the
defendant penalized); Starrs, A Miscue in Fingerprint
Identification: Causes and Concern, 12 POLICE SCI. & ADMIN.
287 (1984) (both prosecution experts IAI certified).
The ACE-V verification step did not protect these
three men against a misidentification. The trial court
correctly concluded that this stage of ACE-V is flawed.
On that basis alone, this Court should conclude that the
ACE-V method, as currently applied, is not sufficiently
reliable to be admitted as evidence in the Commonwealth.
Mr. Meagher suggests that even if there is a problem
with having verifications performed “in-house” by other
members of the same agency or laboratory, in this case
Officer Folib’s conclusion was effectively verified by
another agency — Trooper Martin. (T. 1-131) Even outside
22
verification does not guarantee an independent result. In
the Mayfield case, the FBI concluded that the verifying
examiners’ knowledge of the prior identification made by
a highly-respected examiner was a factor in the error.
Stacey, supra. at 713. There is no testimony in this case
about how Trooper Martin’s analysis may have been affected
by
his knowledge of Officer Folib’s results.
In the Mayfield, Cowans, and Caldwell cases mentioned
above, the examiner’s result was also reviewed and
verified by defense experts. Stacey, supra. at 713
(court-appointed expert); Weber & Rothstein, Man Freed
after 6 Years: Evidence was Flawed, BOSTON HERALD, Jan. 24,
2004, at 4 (two defense experts); Starrs, A Miscue in
Fingerprint Identification: Causes and Concern, 12 POLICE
SCI. & ADMIN. 287 (1984) (IAI certified defense expert).
Finally, the parties did not address a subsequent FBI
report concluding that most of the latent prints in this
case were of no value. (FBI report dated 2/17/05, see Add.
at A28) It would seem, according to Mr. Meagher, that if
the FBI’s examiners and Trooper Martin disagree, “one of
them is considered improperly trained.” (T. 4-97 to 4-101)
Absent testimony explaining why the FBI’s results differ
from Trooper Martin’s, and which of the two is apparently
in error, this Court should not permit the admission of
23
the Commonwealth’s expert’s testimony in this case.
In the wake of the Mayfield error, the FBI has
recommended blind verification in “designated” cases.
Stacey, supra. at 715. This recommendation should be a
condition of admissibility of fingerprint and other
forensic evidence in the Commonwealth.
The verification step of ACE-V does not provide
sufficient protection for a criminal defendant against a
false identification. Blind verification is necessary,
not just in “designated cases”, but in all cases in order
for the ACE-V method to be acceptable evidence in a
Massachusetts court.
4.
The Relative Scarcity of Known Mis-Identifications
does not Demonstrate that the ACE-V method is
Sufficiently Reliable.
Mr. Meagher contends that each and every
misidentification case is attributable to human error –
to an examiner mis-using the ACE-V method, rather than to
a flaw in the method itself. (T. 3-69 to 3-70) The error
rate for the ACE-V method, he contends, is zero. (T. 3-124)
Compare United States v. Havvard, 260 F.3d 597, 599 (7th
Cir. 2001) (noting Meagher’s assertion of zero percent
error rate); United States v. Sullivan, 246 F.Supp.2d 700,
703 (E.D. Ky 2003) (expressing skepticism of a zero percent
24
error rate).
The trial court correctly rejected the
Commonwealth’s claim that “the error rate of ACE-V is zero,
with false identifications attributable only to the
failure of individual examiners to properly follow the
methodology.” (Order dated 10/7/04 at 22) The trial court
concluded instead that “the error rate for ACE-V methology
is quite low.” Id. The amici disagree. At best, the error
rate is unknown. Subjective judgments are an inherent part
of ACE-V. It is a rare case where there is sufficient
external evidence to show that a fingerprint comparison
is unquestionably wrong. Cowan’s case depended on the
fortuity of exculpatory DNA evidence. Mayfield’s case
depended on the insistence of the Spanish authorities that
the FBI had made an error. Absent a serious critical
examination of fingerprint comparisons, the true error
rate is, at best, uncertain.
The Court should also reject Mr. Meagher’s comparison
of fingerprint comparison to mathematics. (Tr. 3-124 to
3-130) An integer’s value is an objective fact. As noted
by both parties, every exemplar print has subtle
differences due to the inherent problems of impressing a
three-dimensional pattern on a two-dimensional surface
requiring a subjective classification of the difference
25
by the examiner. Mr. Meagher’s analogy is more akin to a
mathematician having to interpret a poorly handwritten
equation before attempting to solve it.
The Commonwealth and the trial court refer to the long
history of court acceptance of fingerprint testimony. (See
CBr. 19; Order dated 10/7/04 at 16-17) As noted above, it
is only recently that defense counsel have begun to
seriously challenges fingerprint evidence, often with the
aid of new forensic methods, such as DNA which can provide
powerful exculpatory evidence. More and more instances of
fingerprint identification errors are coming to the fore.
Here, as in areas such as eyewitness identification,
bullet lead analysis, hair comparisons, and handwriting
comparisons, scientific research is increasingly showing
that seemingly-solid evidence rests on shaky foundations.
In addition to the foregoing concerns, the amici are
troubled by Mr. Meagher’s attempt to separate human error
from methodological error. See United States v. Mitchell,
365 F.2d 215, 240 n. 20, 245-46 (3rd Cir. 2004) (rejecting
the division between human and method error). There is no
evidence about the likelihood that an average practitioner
using the ACE-V method will misidentify an innocent person
as the culprit in a crime.
Patterson’s expert mentioned six misidentification
26
cases (Stephen Caldwell, John Trodgen, Shirley McKie,
Richard Jackson, Stephen Cowans, and an unidentified South
Carolina case) in the United States and the United Kingdom.
(T. 1-73 to 1-83) Other researchers have found nearly three
times that many instances of misidentifications. See e.g.
Cole, More than Zero: Accounting for Error in Latent
Fingerprint Identification, 95:3 J. CRIM. L & CRIMINOLOGY 985,
1001-1016 (2005).
The prosecution admitted an error in a 1920 murder
conviction in Pennsylvania. Commonwealth v. Loomis, 270
Pa. 254, 113 A. 428 (1921); Commonwealth v. Loomis, 267
Pa. 438, 110 A. 257 (1920).
The FBI uncovered an error made by an Internal Revenue
agent in 1948, leading to the defendant’s pardon. Noble
& Averbuch, NEVER PLEAD GUILTY: THE STORY
OF
JACK EHRICH 295-298
(1955) (14 matching ridge characteristics); Vollmer,
Report of Science and Practice Committee, 6 IDENTIFICATION
NEWS 1 (1956).
A Minnesota man was acquitted after a
misidentification error was uncovered during the trial of
a co-defendant. State v. Caldwell, 322 N.W.2d 574 (Minn.
1982) (11 matching ridge characteristics).
Latent print experts retracted an identification
made of an Arizona man in a 1988 sexual assault case. Cooper
27
v. Dupnik, 963 F.2d 1220 (9th Cir. 1992); Starrs, More
Saltimbancos on the Loose? Fingerprint Experts Caught in
a World of Error, 12 Sci. Sleuthing News 1, 1-6 (1988).
John Trogen, a North Carolina examiner, was found to
have made three erroneous identification in the mid-1985.
See Starrs, More Saltimbancos on the Loose? Fingerprint
Experts Caught in a World of Error, 12 Sci. Sleuthing News
1, 1-6 (1988); Cole, More than Zero: Accounting for Error
in Latent Fingerprint Identification, 95:3 J. CRIM. L &
CRIMINOLOGY 985, 1001-1016 (2005) (and newspaper articles
cited therein).
The United Kingdom admitted an misidentification in
a 1991 sexual assault case and in a 1996 burglary case.
Grey, Yard in Fingerprint Blunder, LONDON SUNDAY TIMES, April
6, 1997, at 4.
In 1991, Byron Mitchell was convicted in a
Pennsylvania robbery case. United States v. Mitchell, 365
F.3d 215, 220 (3rd Cir. 2004). As noted by Mr. Meagher,
the FBI sent copies of the latent print and Mitchell’s
exemplar to laboratories in all 50 states and the District
of Columbia. (T. 4-24 to 4-51) Nine laboratories reported
that they could not verify the FBI’s identification. (T.
4-38 to 4-43) The FBI then re-sent to those nine
laboratories enlargements of the latent prints, with its
28
points of comparison marked. (T. 4-33 to 4-51) The
laboratories then reported agreement with the FBI. (T.
4-38 to 4-43) See also United States v. Mitchell, 365 F.3d
215, 223-24 (3rd Cir. 2004). Mitchell was ultimately
convicted, but a 20% disagreement rate in the initial
survey is a matter for concern.
The FBI and Illinois State Police uncovered a
misidentification in a murder case in 1994. Higgins,
Fingerprint Evidence Put on Trial, CHI. TRIB, Feb. 25, 2002,
at 1.
An English Court quashed disputed fingerprint
evidence in a 1998 IRA bombing case. Woffinden, Thumbs
Down, GUARDIAN, Jan. 12, 1999, at 17; Woffinden, The Case
of the Missing Thumbprint, 12 NEW STATESMAN 28 (Jan. 8, 1999).
Shirley McKie, a Scottish police detective, was
misidentified as the source of a fingerprint found at a
crime scene in 1997. See Jofre, Falsely Fingered, GUARDIAN,
July 9, 2001, at 16; Specter, Do Fingerprints Lie?, NEW
YORKER, May 27, 2002, at 96.
Richard Jackson, a Pennsylvania man, was falsely
convicted of murder based on a flawed fingerprint
identification in 1998; the error was uncovered, in part,
by the FBI. Janco, Release of Convicted Killer is Sought,
PHILA. INQUIRER, Nov. 24, 1999, at B1; Barnard, Convicted in
29
Slaying, Man Wins Freedom: An FBI Investigation Found that
Fingerprints at Murder Scene Were Not those of Richard
Jackson, PHILA. INQUIRER, Dec. 14, 1999, at B1.
Kathleen Hatfield was misidentified as the corpse
found by Las Vegas police in 2002; she turned up alive after
the body had been sent to her family for burial. Coit, Santa
Rosa woman identified as Vegas slaying victim turns up
alive, THE PRESS DEMOCRAT, Sept 13, 2002, at A1.
A Utah man was misidentified in a murder case by the
Chair of the IAI Latent Print Certification board; the
examiner died shortly thereafter in a laboratory accident.
Vigh, Evidence Bungled in Slaying, SALT LAKE TRIB., Feb. 19,
2003, at D1.
The misidentification of Stephen Cowans in the
shooting of a Boston police officer was uncovered in early
2004. See e.g. Saltzman & Daniel, Man freed in 1997
shooting of officer, BOSTON GLOBE, Jan. 24, 2004, at A1.
Finally, Brandon Mayfield’s misidentification by
three senior FBI examiners, and an outside court-appointed
expert, is the most recent misidentification case. See
Stacey, supra.
The Commonwealth may assert, as the Mitchell court
did, that the very rarity of mistakes like these 18 cases
show the reliability of fingerprint identifications. Such
30
optimism is unwarranted. In the Mayfield case, for
example, three experienced FBI examiners made the same
mistake, which was verified by a court-appointed expert.
Had the Spanish authorities not insisted that Mayfield was
not a match to their evidence and that they had a better
suspect, Mayfield, while innocent, might have been held
indefinitely on a material witness warrant while his life
and his career were ruined. Two defense experts in the
Cowans case reviewed and failed to detect the erroneous
identification made by two Boston police examiners leading
to Cowan’s conviction and incarceration. The mistake was
only discovered due to DNA evidence not tested at the time
of trial. But DNA is not available in the vast majority
of cases. These 18 cases can and should be viewed as the
tip of a much larger iceberg of misidentifications and
flawed convictions.
Mr. Meagher would presumably assert that in all 18
instances, the problem was not the ACE-V method used, but
that the examiners in each case (often more than one per
case) were all at fault and that human error is to blame.
Essentially, this assertion begs the question — one can
always find a way to blame the practitioner, thus
preserving the pristine reputation of the method. However,
at some point, the number of mistakes made by experienced
31
personnel suggest that perhaps the method itself is at
fault. Respectfully, the amici suggest that these cases
suggest systemic error cannot be excluded from the Court’s
analysis of this case.
The error rate of the ACE-V method has not been
sufficiently established. The trial court’s assumption
that a low error rate protects defendants from flaws in
the verification stage of ACE-V is flaunty. This Court
should not affirm the trial court’s decision to admit the
Commonwealth’s fingerprint expert’s testimony based on
this record.
D.
The Court should not Admit the Specific Fingerprint
Comparison in this Case, which Aggregated
Information from Four Separate Latent Prints which
the Examiner Believed were made Simultaneously.
Mr. Meagher asserted that it is “widely accepted”
within the latent fingerprint analyst community to use
ACE-V to compare simultaneous impressions. (T. 3-62, 5-56)
On the other hand, he admitted that he was unaware of any
study regarding simultaneous impressions. (T. 5-56) The
trial court concluded that “individualization based on
application of the ACE-V methodology to simultaneous
impressions is supported by good grounds based on what is
known.” (Order dated 11/29/04 at 4) The amici disagree.
32
The Commonwealth failed to offer any system or criteria
for determining whether multiple latent prints were indeed
simultaneously deposited.11 Without such a system, there
is no basis upon which a court could determine whether or
not an examiner’s opinion that impressions are
simultaneous is based in science.
There are existing criteria which the Commonwealth
could have discussed. David Ashbaugh, a noted writer in
this field mentioned by both experts (See Ex. 66; Br. 19
at 17), writes that “most of the analysis factors [he
describes] can be used to address [simultaneous or
“cluster” identifications]. The purpose of friction ridge
comparison is personal identification of the donor and not
the identification of a specific finger or palm print.”
Ashbaugh, QUANTITATIVE-QUALITATIVE FRICTION RIDGE ANALYSIS 134-35
(1999).
Ashbaugh then discusses a hypothetical — two
fingerprints located on opposite sides of a piece of glass
removed from a window during a burglary — and the features
he would look for to determine whether they were made
simultaneously. Among other factors, the expert should
It is unclear how the expert in Commonwealth v. LeClaire, 28 Mass. App.
Ct. 932, 934 (1999) (simultaneous prints on window) came to this
conclusion.
11
33
look at:
1) Anatomical features: Is the position of the digits
consistent with the same hand, bearing in
mind the shape and location of the prints?
2) Matrix: Is the substance (sweat, oils, any
contaminants like grease or blood) that was
deposited by fingertips the same?
3) Pressure Distortion: Is the deposition pressure
(the amount of force applied to the fingers)
consistent?
4) Development Medium: did the development medium
(powder, chemical, light source, etc.) adhering
to the matrix leave the same signature?
5) Clarity: Is the clarity of the print consistent
considering the pressure distortion? Is there
a similar level of detail along the ridge paths?
Ashbaugh, QUANTITATIVE-QUALITATIVE FRICTION RIDGE ANALYSIS 134-35
(1999). If these factors lead the expert to form an opinion
that the prints were deposited by the same person, at the
same time, then “the weight of the unique details in both
prints are accumulative in the aggregate toward
individualization of the donor.” Id. He notes “[t]his type
of analysis must be recorded in a formal report which
clearly lays out the rationale for the two prints to be
considered in sequence.” Id.
No such report has been introduced into the record,
nor did Mr. Meagher deem such a report important. Officer
Folib’s testimony seems to partly address the anatomical
features, and possibly pressure distortion. (Ex. 47 at
34
5-80 to 5-81, 5-86 to 5-89) He does not address the effects
of the matrix, development medium, or comparative clarity.
His testimony alone would not meet Mr. Ashbaugh’s
standards.
Officer Folib’s testimony is inadequate to show that
the latent fingerprints were made simultaneously. Absent
additional testimony from Trooper Martin on this point,
the Commonwealth has failed to demonstrate that the
Commonwealth’s experts reliably determined that the
latent prints in this case were made simultaneously.
If the Commonwealth is able to demonstrate in a
subsequent hearing that the latent prints were made
simultaneously, the Court should consider whether there
is a minimum amount of information that should be contained
in each latent print in order for it to contribute to an
identification. In the United Kingdom, there was formerly
a standard for simultaneous impressions. “In the case of
two prints found at the scene of a crime which do not belong
to the same finger, it would be permissible to offer
fingerprint evidence, if it could be shown that the prints
came from the same hand or hands of the same individual,
provided that there was a minimum of 10 points of
resemblance on each print.” Leadbetter, Fingerprint
Evidence Standard Newsletter, 24:94 FINGERPRINT WHORLD, 139,
35
139, (Oct. 1998) (discussing the 1953 Standards for
Fingerprint Evidence, including the standard for
simultaneous impressions). See also Scientific Support
Group, FINGERPRINT HISTORY 26 (2000) (same). At that time, the
United Kingdom required 16 points (Level 2 details) in
order to testify to a identification. Id., see also T.
1-68.12
The United Kingdom no longer has a minimum number of
required points. (T. 1-68) Although the United States does
not have a requirement for a minimum number of points, the
FBI laboratory requires a supervisor’s review if an
examiner finds less than 12 points. (T. 5-20) An FBI
fingerprint examiner instructor opined that by 2006, the
FBI will probably set a minimum number of points needed
to declare a match.
McRoberts & Mills, U.S. Seeks Review
of Fingerprint Techniques, CHI. TRIB., Feb. 21, 2005, at A1.
One commentator wrote that 10 to 12 points is considered
standard in the United States; 7 or 8 points are sufficient
only if some of them are very unusual types or
combinations. Moenssens, FINGERPRINT TECHNIQUES 260 (1971).
See also Commonwealth v. Drayton, 386 Mass. 39, 49 (1982)
The amici have not been able to find an explanation of the reasoning
behind the choice of 10 points per simultaneous latent or 16 points in a
single latent.
12
36
(examiner relied on 12 points of comparison); Blumenson,
1 MASSACHUSETTS CRIMINAL DEFENSE § 12.6A at 12 (1990). Officer
Folib testified that Massachusetts courts would accept a
comparison involving 8 points (Ex. 47 at 5-94). See
Commonwealth v. Cintron, 438 Mass. 779, 783 (2003) (24
points found, noting “State police protocol requires 8
points of comparison to make a positive identification”)13.
The amici do not suggest that this Court adopt a
specific minimum number of points. On the other hand, the
Court should consider whether, when a match involves
allegedly simultaneous impressions, an adequate amount of
comparison information is found on each impression.
Officer Folib found a total of 13 points from three latent
prints. (Ex. 47 at 5-94) That would not have been
sufficient under the former United Kingdom policy because
none of the images contained 10 points, and he did not have
a total of 16 points. If one proportionately reduced the
requirement from 16 to 12 points, Officer Folib would have
needed 8 points14 from each latent print to meet a
Mr. Meagher testified that if an FBI examiner finds less that 12 points of
comparison, its quality-assurance program requires review by a
supervisor. (T. 5-20). He did not address whether an 8 point standard
without supervisory review would create a higher likelihood of
mis-identification.
13
Without more information about the reason behind the United Kingdom’s
14
37
counterpart to the United Kingdom standard. Again, his
results would be insufficient. The amici contend that
eight points are inadequate, see Moenssens, FINGERPRINT
TECHNIQUES 260 (1971). Even if the impressions were made
simultaneously, there is not enough information in each
latent print to reliably identify the donor of the print.
The Commonwealth’s experts should be precluded from
testifying that the impressions were made simultaneously.
E.
The Expertise and Qualifications of the
Commonwealth’s Testifying Experts.
The Reservation and Report in the instant case is
focused on the reliability of the ACE-V methodology
applied to simultaneous Impressions. (Reservation and
Report dated 1/14/05). The parties did not discuss the
qualifications of Officer Folib and Trooper Martin in this
hearing. The amici believe the qualifications of the
examiners is a key issue which must be resolved as part
of the Court’s analysis of this issue.
Massachusetts, unlike Oklahoma15, does not have a
threshold of 10 points per simultaneous impression, it is unclear whether
this proportionate reduction would be scientifically reliable. It is included
for illustration purposes only.
See Okla. Stat. § 74-150.37 requiring all laboratories to be meet or
exceed the peer review system imposed by ASCLD/LAB (The American
Society of Crime Laboratory Directors/Laboratory Accreditation Board)
15
38
statutory requirement regarding forensic laboratories or
the qualifications of forensic witnesses. This Court
should consider establishing minimum standards for latent
fingerprint experts to testify in Massachusetts courts.
At the time of Patterson’s first trial in 1995,
Officer Folib had been a member of the Boston Police
Department Identification Unit for 10 years. (Ex. 47 at
5-58 to 5-59) and a member of the Latent Print section for
4 years. (Ex. 47 at 5-59, 5-61). He had a total of 184 hours
of formal training. (Ex. 47 at 5-61) The record does not
indicate whether Officer Folib used the ACE-V method, nor
whether his identification was verified by another
examiner. (See Ex. 47)
The record also does not reflect Trooper Martin’s
qualifications, method of analysis, or whether his
identification had been verified by another examiner.
Mr. Meagher testified that the FBI’s requirements for
a newly hired latent print examiner included a Bachelor
of Science degree or a Bachelor degree with 24 credit hours
in a “hard” science, a 24 month training program, a mentor
accreditation standards. Latent print examiners who are not employed in a
laboratory meeting this standard can testify in a Oklahoma court if they are
IAI (International Association for Identification) certified. Those who are
not eligible to become IAI certified can testify if they do so within six
months of becoming so eligible.
39
program, and a three-day certification examination. (T.
5-64 to 5-65)
Mr. Meagher also described the FBI’s periodic
proficiency testing. (T. 4-168, 4-171) The record does not
indicate whether Officer Folib or Trooper Martin had been
given and passed periodic proficiency tests.
In United States v. Plaza, 188 F. Supp. 2d 549,
565-66, 575-76 (E.D. Pa. 2002), the trial court concluded,
despite reservations about the adequacy of the FBI’s
testing program, that FBI examiners were sufficiently well
trained to testify about their opinion under Daubert. It
reached this conclusion only after (1) reviewing the FBI’s
minimum standards for its examiners; (2) reviewing the
FBI’s annual proficiency testing16; and (3) requiring the
FBI expert to show the jury the actual recovered
fingerprint, rolled fingerprint, and such magnified
images as necessary to allow the jury to see and understand
The Plaza court noted that the FBI tests involved comparing a set of
latent fingerprints to a number of exemplar prints in a blind fashion. The
test takers knew they were being examined and presumably took great
care with the results. During those years, there had been only one
incorrect result — a false negative (a print reported as non-matching that
did in fact come from the same source). A defense expert and the trial
court criticized the testing regime as not being rigorous enough in
comparison with the difficulty of matching latent prints found at actual
crime scenes.
16
40
the basis for the testimony. United States v. Plaza, 188
F.Supp.2d 549, 555-57 (E.D. Pa. 2002).
The Commonwealth has not proven the reliability of
its evidence without proof of Trooper Martin’s
qualifications. In addition, the amici strongly urge this
Court require that rigorous formal training,
certification testing, and regular proficiency testing
for experts employed by forensic laboratories be minimum
requirements for fingerprint experts testifying to
fingerprint
identifications in the Commonwealth.
CONCLUSION
For the reasons stated herein the amici, the National
Association of Criminal Defense Lawyers (NACDL),
Massachusetts Association of Criminal Defense Lawyers
(MACDL), and Committee for Public Counsel Services (CPCS)
respectfully request this Honorable Court reverse the
trial court’s ruling permitting the Commonwealth to admit
evidence regarding the fingerprint comparison in this
case.
41
Respectfully submitted,
The Amici,
By their attorney,
________________________
Lisa J. Steele
BBO# 560207
Steele & Associates
P.O. Box 794
Bolton, MA 01740
(978) 368-1238
42
APPENDIX
Ashbaugh, QUANTITATIVE-QUALITATIVE FRICTION RIDGE
ANALYSIS (1999) . . . . . . . . . . . . . . . . . . A-1
Stacey, A Report on the Erroneous
Fingerprint Individualization in the
Madrid Train Bombing Case, 54:6
J. FORENSIC IDENTIFICATION 706 (2004) . . . . . . . .
A-3