Motion in Limine to Admit Expert Testimony of Latent Fingerprint Identification Without a Daubert Hearing, filed 7-27-09, arguing that 1) “The fourth Circuit and Every Federal Court of Appeals continue to accept expert evidence of the identification of latent fingerprints pursuant to the ACE-V methodology without a Daubert hearing,” 2) the “lack of a numerical point requirement does not render ACE-V unreliable,” 3) “The recent NAS report does not purport to reach legal conclusions about admissibility of latent print evidence,” and 4) “The NAS report does not conclude that the methodology of latent fingerprint identification is unreliable.” AND Amicus Brief on behalf of a college of international practitioners and researchers involved in the field of fingerprint identification and members of the SWGFAST in support of the State’s Motion for Reconsideration, arguing that “in excluding the fingerprint evidence in this case, the court relied on testimony and evidence that does not represent an appropriate and correct view of fingerprint methodology,” and “the court improperly evaluated the reliability of fingerprint identification by comparison with DNA statistical models cited by defense experts. Such models neither show greater reliability of the DNA model nor the unreliability of fingerprint identification.”

Holding from U.S. District Judge Blake filed on 12-8-09 holding that “fingerprint identification evidence based on the ACE-V methodology is generally accepted in the relevant scientific community, has a very low incidence of erroneous misidentifications, and is sufficiently reliable to be admissible under Fed. R. Ev. 702 generally and specifically in this case.”

A Defense Motion to Exclude Latent Fingerprint Testimony dated 10-30-2009 in Superior Court of the District of Columbia, based in part on the NRC NAS report, that “the relevant scientific community does not generally accept that latent fingerprint analysis can reliably and accurately demonstrate a connection between a latent print and a specific individual.” Argument: “The relevant scientific community for latent print identification includes impartial scientists as well as latent print examiners;” “The report of the National Research Council reflects the conclusions of the relevant scientific community for latent print identification;” “The relevant scientific community recognizes that” 1) “a valid scientific basis for latent fingerprint identification has never been demonstrated,” 2) “the claim that latent print identification is infallible is scientifically implausible and demonstrably false,” 3) the claim of a fingerprint ‘match’ is meaningless in the absence of probability rate data,” 4) “latent fingerprint examination is a subjective analysis conducted without standards or controls for bias,” and therefore “the latent fingerprint testimony should be excluded as more prejudicial than probative.”

A Defense Motion to Exclude Latent Fingerprint Testimony filed 11-20-09 in King County Superior Court, claiming that the “relevant scientific community” (including “impartial scientists and scholars”) concludes much as the National research Council (NAS report) – “does not generally accept that fingerprint examiners can accurately and reliably connect a latent print to a specific individual to the exclusion of all others” because “The relevant scientific community recognizes that” 1) “a valid scientific basis for latent fingerprint identification has never been demonstrated,” 2) “the claim that latent fingerprint identification is infallible is scientifically implausible and demonstrably false,” 3) the claim of a fingerprint ‘match’ is meaningless in the absence of probability rate data,” and 4) latent fingerprint examination is a subjective analysis when conducted without standards or controls for bias.” Therefore “the latent fingerprint testimony should be excluded as more prejudicial than probative”.

A 7-2-2010 ruling denying defendant’s Motion to Exclude Fingerprint Evidence in Oregon’s Lane County Circuit Court through an analysis of 12 factors based on State v. O’Key, 321 Or 285 (1995): testibility of falsifiability, peer review and publication, known or potential rate of error, existence and maintenance of standards, degree of acceptance in the relevant scientific community, expert’s qualifications and stature, use that has been made of the test, extent to which other courts admit the test into evidence, novelty of the test, extent to which the test relies on subjective interpretation of the examiner, presence of safeguards in the procedure, and “other factors”.

New Hampshire Supreme Court opinion issued on 12-14-07 that deals with the concept of Verification “bolstering” the examiner’s testimony. The court reverses and remands the case back to trial because it finds that the direct testimony of the examiner went too far in explaining the verification process and the “hearsay” of the results of the second examiner during verification.

MN District Court judge Steven Anderson denies Defendant’s Motion to Exclude Fingerprint Analysis due to the long-held general acceptance as scientifically reliable and that it was adequately applied in this case. Appeal: The decision was not reviewed at the appellate level because even if it was in error, the error would be harmless because of other overwhelming evidence supporting the guilty verdict. Justice Meyer writes (concurring) that any error was harmless, but holding that the district court should have done more to rule on the general acceptance and reliability of latent print examination (rather than only ruling on it’s acceptance as applied to this case).

A March 26, 2008 Howard County Circuit Court order denying the Defendant’s request for a Frye-Reed hearing and Motion to Exclude latent print evidence holding that even though important questions about latent print examination have been raised, (such as the potential bias of verifying examiners, the lack of a requirement that detailed notes be kept by the examiner, the lack of a criterion for declaring a match or identification, the lack of available data about error rate among examiners, and the advisability of using level 3 details in friction ridge comparisons) that the examiner can testify “that Defendant’s print closely or exactly matches” the latent print and “can point out the similarities and the differences, if any, between the latent print and the exemplar – but that the testimony is constrained to not include “absolute” testimony “to the exclusion of all others in the world.”

A January 22, 2010 Public Defender Motion in Limine to exclude latent print testimony because of “…the lack of concrete data regarding the probability of fingerprint matches, the lack of adequate safeguards against false matches, the heightened danger of unfair prejudice, and a variety of other factors…” including that “fingerprint analysis is not scientifically valid,” “there is increasing doubt in the scientific and legal communities as to the veracity of fingerprint evidence,” “there is no evidence regarding rate of error in fingerprint analysis,” “there is a high degree of subjective interpretation in fingerprint analysis,” “the trier of fact cannot adequately verify the results of fingerprint analysis,” “there is a lack of standards…,” and “there is no evidence regarding the care with which the technique of fingerprint analysis was employed.”

The court concludes that “sufficient validation has been done and sufficient standards exist” in firearms examination “to permit the government’s expert to declare a firearms ‘match’ to a ‘practical certainty,’ or to a ‘reasonable degree of certainty..,’ but that the expert may not express his opinions to a ‘reasonable degree of scientific certainty,’ or state that there is a match to an exact statistical certainty... In addition, in explaining the meaning of the term ‘practical certainty,’ … the examiner may not state that it would be ‘practically impossible’ or ‘virtually impossible’ for another firearm to have contributed the same marks.

The February 18, 2009 appellate court decision addressing the concept of verification, holding that it’s improper bolstering for the latent print examiner to testify that someone else arrived at the same conclusion, or even to “explain the use of a second examiner in the verification process” of ACE-V.

A November 25, 2009 Maryland appellate court opinion addressing the concept of holding a reliability hearing for latent print evidence. Considering other cases and rulings, the court holds that ACE-V is sufficiently reliable to not require another separate hearing and that the concept should instead be the subject of cross-examination of the latent print examiner during trial.

A 56K 30-page .pdf file of the written opinion in MA v. Gambora. The judge allowed testimony by a latent print examiner to Individualization because he did not testify that the process was error free. (p. 17)  In the concurring opinion text (p. 28) it is clarified that the testimony of the verifying examiner was allowed because he testified that it was his "opinion" that the defendant "made" the latent prints.

The Fingerprint Sourcebook by the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST) et al. is the definitive guide to the science of fingerprint identification funded by NIJ. The Sourcebook will be published in stages.