Did the Partial Fingerprints Lie?
Identification by "Simultaneous Prints" Struck Down
By: Erin Daigh Armstrong
Commonwealth v. Patterson, 445 Mass. 626 (2005)
Developing
technology has provided law enforcement with innovative ways to “fight
crime” and “catch the bad guys”. From DNA profiling to blood spattering
analysis, investigators can indict an unknown individual based on the
genetic “id” left behind at the scene of a crime and even determine the
position of an individual when their lives were extinguished. However,
one area of forensic science that still relies heavily on the “naked
eye” is fingerprint analysis. Fingerprints are analyzed objectively and
subjectively, depending on what level of testing the expert is
executing, and “positive ids” often result in law enforcement catching
to right “bad guy”.
However, the Massachusetts court
in the present case, drew the line between complete latent prints and
simultaneous latent impressions that fail to “prove” the identity of an
individual when viewed one at a time. In Patterson, the court felt it
necessary to protect individuals who might be implicated by incomplete
prints alone, because the court did not believe identification by
“simultaneous prints” had been proven sufficiently reliable.
In
February 1995, Terry Patterson was convicted of armed robbery,
possession of a dangerous weapon, and the September 1993 murder of
Detective John Milligan. Commonwealth v. Patterson, 445 Mass.
626, 2005 WL 3503603 (Mass. 2005). His convictions were set aside in
2000 based on the finding of ineffective assistance of counsel, and
prior to retrial, Patterson attempted to exclude the fingerprint
analysis evidence and expert testimony that was a key element in the
prior conviction. (Multiple fingerprints “linked” to the defendant were
found on the window of the Milligan's truck, the vehicle in which the
detective was found shot to death.)
Patterson's
argument was based on the premise that the community of fingerprint
examiners was not large enough to “constitute a relevant scientific
community for purposes” of evaluating general acceptance, a necessary
element for the admission of expert testimony at trial. The
fingerprints taken from “the scene” were not complete as none of the
four latent prints met the standard eight points of similarity which is
the generally accepted number necessary to conduct a proper analysis.
At the first trial, Robert Folib, of the Boston Police Department,
testified that while each individual print, taken by itself, did not
satisfy the “magic number”, but since the individual latents were all
believed to have been from one and the same hand, use of the prints as
a group satisfied the requirement. If the prints had not been lumped
together as being of the same hand, the examiner would have been unable
to match a single latent print to those taken from Patterson.
Relying on Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), and Commonwealth v. Lanigan,
419 Mass. 15 (1994), the Supreme Judicial Court of Massachusetts
concluded that while ordinarily latent fingerprint identification,
namely the ACE-V method, meets the necessary level of reliability to
admit its related expert testimony, evidence and analysis related to
simultaneous impressions did not meet the “proven reliability”
standard. Specifically, the State had failed to show that “the theory,
process, and method of latent fingerprint identification could not be
applied reliably to simultaneous impressions not capable of being
individually matched to any of the fingers that supposedly made them.”
Reliability of latent fingerprint identification and ACE-V
Fingerprint experts around the world accept and apply the theory of latent fingerprint identification. (U.S. v. Mitchell, 365 F.3d 215, 222 (3d Cir. 2004); U.S. v. Llera Plaza, 188 F. Supp. 2d 549, 555, 566-67 (E.D. Pa. 2002).)
ACE-v is the standard methodology used throughout the US and many parts
of the world. This method involves studying, methodically, three stages
of ridge detail that may be visible in the latent impressions of
friction skin. Level One detail studies the flow of the ridges and the
gross details of visible patterns - at one time a study of Level One
detail might have been called verification of class characteristics;
Level Two detail looks at more intricate details of the finger's ridges
such as forks formed at different ridge intersections, islands, and the
like - formerly called individual ridge characteristics; Level Three
detail studies the more intricate and microscopic characteristics
including ridges, shape, width, and pore structure, if visible. An
identification cannot be made on the basis of Level One detail, but the
presence of sufficient Level Two detail can result in an
identification. Level Three detail is particularly useful if Level Two
detail is scant.
There are two distinct parts of the ACE-V process, one which is
objective analysis of the prints, the other a subjective profile
created from the examiner's expertise at fingerprint identification and
comparison. While many jurisdictions used to require a minimum number
of similar points before a positive identification between prints is
confirmed, most now rely solely on the expertise of the examiner to
serve as sufficient “proof” that a latent and full print are in fact a
match.
What are simultaneous latent impressions?
Simultaneous
latent impressions are the impressions left by multiple fingers from
believed to be from the same hand left at the same time. A recurring
question that resurfaced in Commonwealth v. Patterson was
whether the process and theory of latent fingerprint identification,
specifically the ACE-V method, meets the standards created in Daubert.
Overcoming that hurdle is necessary to establish in order for expert
testimony to be admitted that would explain the process of matching a
latent impression with a “complete” fingerprint, at least in federal
jurisdictions and in states that follow the model of the Federal Rules
of Evidence as interpreted in Daubert. Specifically, the
“prongs” that must be satisfied at the district court level in order
for expert testimony to be admissible are: (1)“whether the expert would
testify to valid scientific knowledge”, thereby fulfilling the
“reliable” requirement; and (2) whether the testimony would help the
jurors answer the questions at issue in the case, simply stated at
relevance. The general practice of identifying crime scene latent
fingerprints was deemed to satisfy the Daubert standards.
But that didn't end the inquiry in this case. Patterson required
the State to meet a higher burden because the latent impressions were
unable to be matched individually, therefore forcing the State to
compare simultaneous, but incomplete latent fingerprint impressions to
those of Terry Patterson. The court found that the State failed to
prove the reliability of such a process.
BACKGROUND: A little more detail in the Patterson factual setting
Terry
Patterson was convicted for the murder of a Boston police detective
John Mulligan in 1995. Detective Mulligan was found shot to death in
his vehicle outside a Walgreens where he moonlighted as a security
guard. There were no eye witnesses to the murder, but persons in the
area around the time of the killing observed two black men in the
vicinity of the drugstore.
Patterson's conviction
relied heavily on the use of ACE-V, the most widely used type of latent
fingerprint technology, which a police expert testified placed
Patterson at the scene of the murder. Simply, four fingerprint
impressions were found at the scene of the crime, and the fingerprint
examiner used those impressions to link Patterson to that crime.
However, that identification differed from the standard procedure
because none of the four prints could be used alone. Instead, the
examiner linked the similarities each finger possessed collectively to
reach his conclusion. That conclusion was based on the practice called
“identification by simultaneous impressions” which looks at the minor
similarities between impressions that would be unallowable alone but
accepted by some examiners. (“Simultaneous impressions” is the
technical term for what is, simply, fingerprints believed to be made by
multiple fingers from the same hand made at the same time.)
Daubert & Lanigan
Before Lanigan, Massachusetts followed the “general acceptance test” for admissibility of scientific evidence created in Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), which looks at “whether the community of
scientists involved generally accepts the theory or process.” This
objective evaluation was intended to shield individuals from procedures
that were not widely used or proven to produce effective results. In Lanigan,
the Massachusetts court reestablished its dependency on “general
acceptance” and the importance of that test but also allowed
consideration of Daubert factors when “general acceptance” was not
clearly established. For example, if the expert chosen to testify as to
the general acceptance of the procedure used to fails to establish the
reliability of the scientific evidence can go through a complete,
five-factor Daubert analysis.
The
five-factor test established in Daubert was designed to aid federal
courts in determining whether expert testimony based on scientific,
technical or other specialized knowledge could be admissible. Daubert
purportedly implemented a more flexible admissibility standard to guide
courts necessary in a society with constantly changing technology that
allows law enforcement and the legal profession to access and analyze
evidence through innovative procedures not previously developed. Those
factors are: (1) whether the theory or technique can be and has been
tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) what is the known or potential rate of
error of a particular scientific technique; (4) whether the relevant
scientific community expresses a determination of acceptance of the
theory or technique within that community. The inquiry is supposed to
be a “flexible one” and does not require a talismanic application of
the five factors. Further, Daubert
inquiries focus on the “principles and methodology, not on conclusions
that they generate because even reliable procedures can lead to
incorrect results.”
Massachusetts
did not set an unreachable goal for law enforcement and prosecutors,
but rather, it established a reasonable expectation that the freedoms
of its citizens will not be jeopardized by unreliable evidence. While
fingerprint analysis is generally accepted within the scientific
community, there are requisite levels of identifying detail that must
be present in order for the evidence to meet the necessary standard
prior to being admitted into evidence. The process of individualization
by “simultaneous impressions” has not reached the necessary standard of
trustworthiness.
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