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Court Challenges to Fingerprints
With the 1991 Federal Court ruling in Daubert vs. Merrill Pharmaceutical
Company, new guidelines for the admission of scientific evidence were established
for Federal Courts and States using the Federal Rules of Evidence.
This court ruling has opened the door for defense attorneys to attempt
to challenge even the long accepted testimony of fingerprint experts. To
date, their efforts have been thwarted by competent and knowledgeable experts
and counsel in several cases. The courts have dismissed the challenges
in several other cases without the delay of a hearing. Examiners can expect
these challenges to continue until the courts elect to consistently dismiss
the challenges, the critics tire of their futile efforts, or until the
Supreme Court provides a definitive and binding decision.
The following list of cases is provided as references which can be used
in the support of fingerprints. For California experts it should be noted
that while our state courts have not adopted the Federal Rules of Evidence
at this time, the same issues are being raised under Frye (note the Nawi
case in San Francisco). On the SCAFO website (www.scafo.org), a new section
for court challenges has been established. In this section the list of
cases (same information as below) is available in a format for easy printing
and distribution. Various documents from several of the cases are also
available within the website or via links to other websites. This documentation
includes motions (defense and/or prosecution) and rulings or press releases
as available. It is important that all examiners become aware of some of
the strategies used to attack fingerprint evidence and prepare themselves
to answer the challenges. This information may also be vital for attorneys
wanting to utilize fingerprints in adjudicating a legal matter.
In the course of these challenges the names of several opponents to the
current use of fingerprints have surfaced. Professor James Starrs of George
Washington University, Dr. Simon A. Cole of Rutgers University, and Dr.
David Stoney of the McCrone Research Institute, were involved in the Bryon
Mitchell case. Dr. Cole recently published an article in the Academic Journal
“LinguaFranca.” The article, The Myth of Fingerprints -- A forensic science
stands trial is available online at www.linguafranca.com/print/0011/feature_fingerprints.html.
[An authoritative refuting of Cole's account of the Bryon Mitchell case
can be read in an editorial entitled Simon Says by David Grieve in the
January / February 2001 issue of the Journal of Forensic Identification,
pp. 85 -- 97.) As these names (Starrs, Cole, and Stoney) may appear inconspicuously
on a witness list, examiners should recognize these names and notify their
counsel of these individual's background and involvement in recent court
challenges to the use of fingerprints.]
CASE #1: U.S. v. Byron Mitchell, Criminal Action No. 96--407, U.S. District
Court for the Eastern District of Pennsylvania
DATE and LOCATION of DAUBERT HEARING: July 7--13, 1999; Philadelphia, PA
JUDGE: Hon. J. Curtis Joyner
ATTORNEYS:
Prosecution: AUSA Paul Sarmousakis
Defense: Leigh Skipper, Robert
Epstein
GOVERNMENT WITNESSES:
William Babler, Marquette University
David Ashbaugh,
Royal Canadian Mounted Police
Edward German, U.S. Army Crime Laboratory
Stephen
Meagher, FBI
Don Ziesig, Lockheed Martin Corp.
Bruce Budowle, FBI
Pat Wertheim,
Fingerprint Consultant
DEFENSE WITNESSES:
Marilyn Peterman, Defense Investigator
James Starrs, George
Washington University
David Stoney, McCrone Institute
Simon Cole, Rutgers
University
DECISION: Oral decision presented by Judge Joyner on 9/13/99. The defense
motion to exclude fingerprint evidence and testimony was denied. The government's
motion to exclude the defense witnesses (Starrs, Stoney and Cole) was granted;
exception was Stoney could testify to the specific latent prints in question
as to their identity with the defendant. (Stoney did not testify at trial.)
Government request for judicial notice was granted for two premises: 1)
“...that human friction ridges are unique and permanent throughout the
area of friction ridge skin, including small friction ridge areas...” and
2) “...friction ridge skin arrangements are unique and permanent...” No
written decision. No Solicitation issue.
CASE #2: Anthony Golden v. County of Los Angeles, et.al., Case No. CV
97--6140 CAS., U.S. District Court for the Central District of California.
DATE and LOCATION of DAUBERT HEARING: September 24, 1999; Los Angeles,
CA
JUDGE: Hon. Christina A.Snyder
ATTORNEYS:
Plantiff: Ellen Hammill Allison
Defendant: Los Angeles Principal
Deputy County Council Dennis M. Gonzales
GOVERNMENT WITNESS:
William Leo, Los Angeles Sheriff's Department
PLANTIFF WITNESS: None
DECISION: The motion to exclude the fingerprint evidence and testimony
was denied. The plantiff filed a written motion to exclude fingerprint
evidence patterned after the motions in the U.S. v. Byron Mitchell Daubert
Hearing. (Of interest --— this is the first attack on fingerprint in a
civil rights lawsuit. During the examination of the government witness,
the attack on the fingerprint evidence included the failure of the Los
Angeles Sheriff's Department to follow national standards or procedures.
The expert responded that the guidelines established by SWGFAST were followed
to include training of fingerprint examiners, the comparison process and
verification.)
CASE #3: U.S. v. Hilerdieu Alteme, Case No. 99--8131, U.S. District Court
for the Southern District of Florida, Ft. Lauderdale Division
DATE and LOCATION of DAUBERT HEARING: April 3--6, 2000; Ft. Lauderdale,
FL
JUDGE: Hon. Lurana S. Snow
ATTORNEYS:
Prosecution: AUSA Karen Atkinson
Defense: Timothy Day
GOVERNMENT WITNESSES:
William Babler, Marquette University
Stephen Meagher,
FBI
Bruce Budowle, FBI
DEFENSE WITNESSES:
David Stoney, McCrone Institute
DECISION: Written decision issued on 4/7/00. Defense motion to exclude
fingerprint evidence and testimony denied. (Note: The defense questioned
both Budowle and Meagher regarding the NIJ solicitation.)
CASE #4: People v. Torres, Court No. BA145133, Department 101, Superior
Court of the County of Los Angeles
DATE and LOCATION of HEARING: No Hearing
JUDGE: Hon. William Pounders
ATTORNEYS:
Prosecution: Stephen Frankland, Deputy District Attorney
Defense:
GOVERNMENT WITNESSES: None
DEFENSE WITNESSES: None
DECISION: Defendant filed a Motion In Limine to Suppress Fingerprint Evidence
and Testimony. Court denied motion without a Daubert hearing and defendant
pled guilty on 5/15/00.
CASE #5: U.S. v. Stanley Leon Obanion, Jr. and Joseph Brooks Robinson,
Criminal No. DKC--98--0442, U.S. District Court for the District of Maryland
DATE and LOCATION of DAUBERT HEARING: June, 2000; Beltsville, MD
JUDGE: Hon. Deborah Chasanow
ATTORNEYS:
Prosecutor: AUSA Jan Paul Miller
Defense: John Chamble and Fred Warren Bennett
GOVERNMENT WITNESSES: None
DEFENSE WITNESSES: None
DECISION: The Judge heard arguments but no witnesses testified. The Judge
ruled from the bench (no written decision) that the defense motion to exclude
fingerprint evidence and testimony be denied. (Of interest --— the defense
used the NIJ solicitation as part of its argument. The Judge took it into
consideration and ruled to deny the request.)
CASE #6: U.S. v. Williams, Criminal No. 00--5263T, Western District of
Washington, Tacoma Division
DATE and LOCATION of DAUBERT HEARING: July 7, 2000
JUDGE:
ATTORNEYS:
Prosecution: AUSA Robb London
Defense:
GOVERNMENT WITNESSES: None
DEFENSE WITNESSES: None
DECISION: Defendant filed a Motion to Suppress Expert Opinion on Identification.
On 7/7/00 the motion was denied without a hearing.
CASE #7: U.S. v. Wade Havvard, Case No. IP 00--43--CR--01, U.S. District
Court, Southern District of Indiana, Indianapolis Division
DATE and LOCATION of DAUBERT HEARING: September 11, 2000; Indianapolis,
IN
JUDGE: Hon. David F. Hamilton
ATTORNEYS:
Prosecution: AUSA Susan Dowd
Defense: William Marsh
GOVERNMENT WITNESSES: Stephen Meagher, FBI
DEFENSE WITNESSES: None
DECISION: Written decision filed 10/5/00. Defense motion to exclude fingerprint
evidence and testimony denied. (This is the first published opinion)
CASE #8: (Modified Frye Hearing -- 402 hearing)
State of California v.
Robert Nawi; 176527; Superior Court of the State of California
DATE and LOCATION OF HEARING: October 10, 2000; San Francisco, CA
JUDGE: Hon. Leonard Louie
ATTORNEYS:
Prosecution: John Farrell
Defense: Michael Burt
GOVERNMENT WITNESSES:
Kenneth Moses (retired San Francisco PD)
DEFENSE WITNESSES: None; (defense requested court to subpoena and pay expert
witness fees for David Stoney and Simon Cole. Judge denied.)
DECISION: Modified Frye hearing (402 hearing) challenging fingerprint expert
procedures, standards and verifiability of the standards. Defense presented
same arguments as U.S. v Mitchell filings. Defense motion to exclude fingerprint
evidence and testimony denied.
CASE #9: State of Georgia vs. Jeffrey Vincent McGee; Indictment No. 99--CR--277;
Superior Court of Carroll County
DATE and LOCATION of DAUBERT HEARING: October 27, 2000; Carrollton, GA
JUDGE: Hon. Aubrey Duffey
ATTORNEYS:
Prosecution: Anne Allen
Defense: Michael Mears
GOVERNMENT WITNESSES: Stephen Meagher, FBI
DEFENSE WITNESSES: Lanny Cox; Lou Cuente; Jeffrey Kovac; David Stoney
Lanny
Cox was crime scene investigator for GBI and Lou Cuente was GBI latent
print expert. Defense called them to testify to their procedures, standards
and verifiability of their standards. This is in line with Harper decision
in Georgia as opposed to Daubert decision in Federal court. Dr. Kovac,
Ph.D., Prof. of Chemistry, Univ. of Tenn., testified to what constitutes
science and ethics in science. Stoney testified as to his perception of
latent print examinations and that it is not science because statistical
probabilities are not used to establish a minimum number of points needed
to individualize.
DECISION: The motion to exclude the fingerprint evidence and testimony
was denied. The written decision included the following: “This court will
take judicial notice of the fact that the fingerprints of each human being
are different from those of any other human being and that said individual
fingerprints are permanent and that they are not altered by the passing
of time or by degenerative physical disorder or traumatic event; That the
fingerprint identification of individuals has been accepted as accurate
by all state and Federal courts of the United States as well as by the
courts throughout the entire world for at least the past 80 years, ...”
“This court therefore concludes that despite numerous legal challenges
in state and federal courts, the courts have held that fingerprint identification
has reached a scientific stage of verifiable certainty and; this court
finds that fingerprint identification is reliable evidence ...”
CASE #10: U.S. v Graham Rogers, Criminal No. CR--90--1BR, U.S. District
Court for the Eastern District of North Carolina
DATE and LOCATION of DAUBERT HEARING: December 6--7, 2000; Richmond, North
Carolina
JUDGE: Hon. W. Earl Britt
ATTORNEYS:
Prosecution: AUSA Dennis Duffy
Defense:
GOVERNMENT WITNESSES:
Robert Schumann, U.S. Secret Service
Vici Inlow, U.S.
Secret Service
DEFENSE WITNESSES: None
DECISION: Trial had begun and several witnesses had testified. Prior to
fingerprint evidence being given, the defense offered NIJ solicitation
as basis for a Daubert hearing. Being toward the end of the day, the Judge
stated he would review the solicitation overnight. The prosecution offered
the NIJ letter dated 6/20/00 and prior court decisions. The next day the
Judge heard oral arguments from the attorneys and ruled that a Daubert
Hearing was not necessary and further, concurred with the Havvard decision.
CASE #11: (Frye Hearing) U.S. v William Baker, et al; Superior Court of
the District of Columbia; (Four defendant trial.) Actual motion was filed
under U.S. v Bryant C. Woodland, Criminal Number F--2377--00.)
DATE and LOCATION of HEARING:
November 13, 2000; Washington D.C.
JUDGE: Hon. Russell Canan
ATTORNEYS:
Prosecution: AUSA Jeff Beatrice
Defense: Douglas Wham, Sharon
Burka, Russell Hairston, Carlos Vanegas
GOVERNMENT WITNESSES: Stephen Meagher
Due to scheduling conflict and at
end of the day, there was no cross--examination by defense at that time.
Rescheduled to continue at a later date.
DEFENSE WITNESSES: None. Prof. James Starrs, George Washington University,
was proffered as the defense witness, but after Government witness testimony
no defense witness testimony was presented and no need for cross--examination
of government's witness.
DECISION: Defense motion was withdrawn.
(Editor -- I would like to thank Steve Meagher for the majority of the
information presented in this column. Additionally, I would thank SCAFO
past president Bill Leo, and also John Vanderkolk, Indiana State Crime
Crime Lab, for their contributions to this compilation of information.
On behalf of our profession, I would also extend a special thanks to each
of the prosecution witnesses, prosecutors and the judges who have so aptly
applied the law to our science.)
This article was printed in “THE PRINT”
Volume 17 (1) January / February
2001, pp 3 - 7
and has been obtained from the online library provided by
the
Southern California Association of Fingerprint Officers
www.scafo.org
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