Criminal Justice Section
Criminal Justice Magazine
Volume 20 Number 1
By Paul Giannelli
Paul Giannelli is the Albert Weatherhead III and Richard W. Weatherhead Professor of Law at Case Western Reserve University Law School in Cleveland, Ohio, and coauthor of Scientific Evidence (LEXIS 3d ed., 1999). He is also a contributing editor to Criminal Justice magazine and a member of its editorial board.
Like many other forensic sciences, fingerprints gained judicial acceptance long before the demanding Daubert standard was operative. (See Weisgram v. Marley Co., 528 U.S. 440, 455 (2000) (Daubert imposes “exacting standards of reliability.”).) The first reported case was People v. Jennings, 96 N.E. 1077 (Ill. 1911). Numerous attacks, albeit unsuccessful, have been launched against fingerprint evidence in recent years. In many of these cases, FBI examiners testified that there is a “zero error” rate in fingerprint examinations. (E.g., United States v. Havvard, 117 F. Supp. 2d 848, 854 (S.D. Ind. 2000) (“The government claims the error rate for the method is zero.”), aff’d, 260 F.3d 597 (7th Cir. 2001).)
Madrid train bombing
Although this astounding statement has been accepted by courts, the terrorist bombing of a train in Madrid on March 11, 2004, which killed 191 and injured 2,000, undermined this claim. The FBI got it wrong, misidentifying Brandon Mayfield, a Portland lawyer, as the source of the crime scene prints. (See Sara Kershaw, Spain and U.S. at Odds on Mistaken Terror Arrest, N.Y. TIMES, June 5, 2004, at A1 (Spanish authorities cleared Brandon Mayfield and matched the fingerprints to an Algerian national).)
To its credit, the FBI began an investigation using outside experts. The resulting report, however, raised a number of disquieting issues. (Robert B. Stacey, A Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case, 54 J. FORENSIC IDENTIFICATION 707 (2004).) First, the “dissimilarities . . . were easily observed when a detailed analysis of the latent print was conducted.” (Id. at 714.) In short, it was not a difficult fingerprint to interpret. Second, the mistake was attributed in part to “confirmation bias”—a well-established phenomenon. (See D. Michael Risinger et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 CAL. L. REV. 1, 39 (2002).) In other words, once the examiner made up his mind, he saw what he expected to see during reexaminations. Third, the second review by another examiner was not conducted blind—i.e., the reviewer knew that a positive identification had already been made. Indeed, a third expert, from outside the FBI, also confirmed the identification—again, confirmation bias. Fourth, the culture at the laboratory was poorly suited to detect mistakes. As the report noted, “To disagree was not an expected response.” (Id. at 713.) Fifth, proficiency testing was apparently not sufficiently rigorous: “Verifiers should be given challenging exclusions during blind proficiency tests to ensure that they are independently applying ACE-V methodology correctly. . . .” (Id. at 716.) Surprisingly, the report repeatedly alluded to the need to be cautious due to the “inherent pressure of high-profile case,” (id. at 713 & 716), leaving one to wonder about the routine case.
This was not the only fingerprint mishap recently reported. Stephan Cowans was released after serving six years in a Massachusetts prison for the nonfatal shooting of a police officer. His was the first conviction overturned on DNA evidence in which fingerprint evidence had been crucial in securing the wrongful conviction. (See Elizabeth F. Loftus & Simon A. Cole, Letter, Contaminated Evidence, 304 SCIENCE 959 (May 14, 2004) (“[F]orensic scientists remain stubbornly unwilling to confront and control the problem of bias, insisting that it can be overcome through sheer force of will and good intentions.”).) Commenting on the case, Professor Mnookin wrote: “[T]he fingerprint community has little motivation to investigate how often they make mistakes. Fingerprint examiners regularly assert in court that the technique is error-free and that fingerprint matches are a sure thing.. . . [F]ingerprints cannot possibly be as perfect a technique as the experts presently claim.” (Jennifer L. Mnookin, Editorial, A Blow to the Credibility of Fingerprint Evidence, BOSTON GLOBE, Feb. 2, 2004.)
A news article has reported that the expert in the Cowans case had discovered his mistake before trial and then “concealed it all the way through the trial.” (Flynn McRoberts & Steve Mills, Justice Reviewing Use of Fingerprint Evidence, Citing Recent Mistakes, CHI. TRIB., March 4, 2005.)
Riki Jackson’s prints were similarly misidentified. He was convicted of murder in 1997 based on bloody fingerprints discovered on a window fan. (Flynn McRoberts et al., Forensics Under the Microscope: Unproven Techniques Sway Courts, Erode Justice, CHI. TRIB., Oct. 17, 2004.) The police expert, Anthony Paparo, matched 11 friction points to Jackson. Another examiner concurred. At trial, Paparo and two other experts testified to a “match.” In contrast, two defense experts, both retired FBI examiners, testified that there was no match. Nevertheless, Jackson was convicted and sentenced to life imprisonment. Frustrated, the defense experts filed a complaint with the International Association of Identification concerning the prosecution experts’ testimony. This triggered an FBI review, which concluded that the government experts had erred. Jackson was released from prison.
Other problematic fingerprint cases include: Imbler v. Craven, 298 F. Supp. 795 (C.D. Cal. 1969) (expert failed to observe an exculpatory fingerprint in a murder case, in which the death penalty was imposed), aff’d, 424 F.2d 631 (9th Cir. 1970); State v. Caldwell, 322 N.W.2d 574, 586 (Minn. 1982) (“The fingerprint expert’s testimony was damning—and it was false.”). See also “Do Fingerprints Lie?” by Michael Specter in the New Yorker (May 27, 2002, at 96); “A Miscue in Fingerprint Identification: Causes and Concerns” by James E. Starrs, in the Journal of Police Science & Administration (vol. 12, p. 287 (1984)).
United States v. Mitchell
Another distressing item surfaced in United States v. Mitchell, 365 F.3d 215 (3d Cir. 2004), the first post-Daubert attack on fingerprint evidence. In March 2000, the National Institute of Justice (NIJ), the research arm of the Department of Justice, released a solicitation for fingerprint research. The “introduction” to the solicitation stated that Daubert “required scientists to address the reliability and validity of the methods used in their analysis. Therefore, the purpose of this solicitation is to . . . provide greater scientific foundation for forensic friction ridge (fingerprint) identification.” (NATIONAL INSTITUTE OF JUSTICE, SOLICITATION: FORENSIC FRICTION RIDGE (FINGERPRINT) EXAMINATION VALIDATION STUDIES (March 2000).) After the Mitchell trial, the defense attorney learned that the solicitation had been postponed, arguably so it could not be used in Mitchell to support the defense challenge. (See Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” Is Revealed, 75 SO. CAL. L. REV. 605, 628 n.122 (2002) (“Internal documents of the NIJ presently on file with the author . . . reveal that the Institute was ready to publish the Solicitation in September of 1999, but that at the FBI’s request, publication was delayed until after Mitchell’s trial.”). Epstein was the defense counsel in Mitchell.)
The Third Circuit commented on these events:
We are deeply discomforted by Mitchell’s contention—supported by Dr. Rau’s account of events, though contradicted by other witnesses—that a conspiracy within the Department of Justice intentionally delayed the release of the solicitation until after Mitchell’s jury reached a verdict. Dr. Rau’s story, if true, would be a damning indictment of the ethics of those involved.
(Mitchell, 365 F.3d at 255.)
These comments were based on the following account:
[Mitchell’s] most damaging evidence came from Dr. Richard Rau of the NIJ, who coordinated the drafting of the solicitation. Rau testified to conversations at a September 1999 meeting among himself, Donald Kerr (the Assistant Director of the FBI in charge of the FBI crime laboratory), David Boyd (the Deputy Director of the NIJ), and others. Rau claimed that at that meeting Kerr and Boyd agreed to withhold release of the solicitation until the end of Mitchell’s trial. In response to Dr. Rau’s testimony, the government called Kerr, Boyd, and the other individuals at the meeting to testify that Dr. Rau’s account of the delay in releasing the solicitation was incorrect and that the delay was caused by budgetary issues.
(Id. at 232.)
Moreover, a subsequent attempt to establish an empirical basis for fingerprint comparison was thwarted. An editorial in the prestigious scientific journal, Science, entitled “Forensic Science: Oxymoron?” and written by the editor-in-chief, discussed the cancellation of a National Academy of Sciences project designed to examine various forensic science techniques, including fingerprints, because the Departments of Justice and Defense insisted on a right of review that the academy had refused to other grant sponsors. (Donald Kennedy, Editorial, Forensic Science: Oxymoron? 302 SCIENCE 1625 (2003).) In sum, not only is there a lack of empirical support for fingerprints, but the proponents of the technique are undercutting efforts to establish such a basis.
A new NIJ solicitation on fingerprint research has been issued. (See Flynn McRoberts & Steve Mills, Justice Reviewing Use of Fingerprint Evidence, Citing Recent Mistakes, CHI. TRIB., March 4, 2005.) Hopefully, this research will produce sufficient data so that the criminal justice system will be able to assess more accurately the probative value of fingerprint evidence.
(See recent commentary, Simon A. Cole, Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again, 41 AM. CRIM. L. REV. 1189 (2004); Jennifer Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 BROOK. L. REV. 13 (2001); Kristin Romandetti, Recognizing and Responding to a Problem with the Admissibility of Fingerprint Evidence Under Daubert, 45 JURIMETRICS 41 (2004); Nathan Benedict, Note, Fingerprints and the Daubert Standard for Admission of Scientific Evidence: Why Fingerprints Fail and a Proposed Remedy, 46 ARIZ. L. REV. 519 (2004); Jessica M. Sombat, Note, Latent Justice: Daubert’s Impact on the Evaluation of Fingerprint Identification Testimony, 70 FORDHAM L. REV. 2819 (2002).)