6
WAS A GOOD NUMBER AND SO LATER I JUST STOPPED AT TEN. IT
WAS A NICE PRINT, I JUST MADE AN ARBITRARY DECISION OF TEN
POINTS THAT TIME.
Q. WERE THERE ANY POINTS OF DISSIMILARITY?
A. NO.
Q. YOU STOPPED LOOKING AT TEN, YOU SAW TEN POINTS OF
SIMILARITY AND THEN SAID THAT IS A NICE ARBITRARY NUMBER I
WILL STOP AT TEN?
A. I HAVE STOPPED AT 8, I HAVE STOPPED AT 12 BUT I JUST LIKE
THE NUMBER 10.
Q. WELL, IS THERE SOME STANDARD WITHIN YOUR PROFESSION
THAT FINGERPRINT EXAMINERS GO BY TO SAY YOU SHOULD HAVE
A MINIMUM NUMBER OF POINTS OF COMPARISON BEFORE YOU
CALL IT?
A. NO, BECAUSE YOU GO ON POROSCOPY AND YOU ARE GOING ON
RIDGEOLOGY.
Q. WHAT DOES THAT MEAN?
A. YOU ARE GOING TO THE PORES OF THE FINGERPRINT RIDGES.
AND LIKE ALSO WHEN YOU LOOK AT THE FINGERPRINT RIDGES
THERE IS LIKE LITTLE INDENTATIONS ON IT AND LITTLE BUMPS ON
THE FINGERPRINT, SO YOU ARE GOING ON THAT TOO.
Q. DO YOU KNOW WHAT THE FBI STANDARDS ARE IN TERMS OF
NUMBER OF COMPARISONS?
A. THEY REALLY DON'T HAVE ONE EITHER.
Q. THEY DON'T HAVE A MINIMUM OF 12?
A. NO.
7
(RT 258)
Ms. Chong further testified about the methodology of her comparison. She produced a
latent print that had been recovered from the phone booth where the anonymous call had been
made and indicated that Inspector Moses had matched the latent to a person other than Mr.
Nawi.(RT 254-255). An enlarged photograph of both the latent and the known print had been
marked by Inspector Moses in red ink to indicate numerous points of similarity. (RT 257). In
contrast, none of the latent prints from the water heater nor Mr. Nawi’s known prints had been
marked by Ms. Chong to indicate similar points. (RT 260-264). Somebody had marked the
thumb latent with red ink, but Chong testified that “ I can’t remember who marked it,...whether it
was Ken or whether I did it. “(RT 260). There is no procedure in the Lab for documenting who
puts ink marks on photographs of latent prints in homicide cases.(RT 260). The photo showed 8
red marks, not 10. (Id.) When asked whether she had any photographs to document her 10 points
of similarity, Chong replied, “ SOMETIMES YOU DON”T NEED TO MARK IT WITH A RED
DOT. IF YOU ARE JUST GOING TO USE THE POINTERS YOU COULD JUST, YOU
DON’T NEED THE MARK OF A RED DOT IF YOU JUST KEEP COUNTING UNTIL YOU
GET 10, 12, 14.” (RT 261).
Finally, Ms. Chong acknowedged that she did not follow the proficiency testing
requirements of her own Department. She was unaware until informed on the stand that there
was a written requirement of her Department that “all C.S.I.(Crime Scene Investigation) staff
who report fingerprint comparisons shall complete at least one proficiency test each year.”(RT
232). Since first starting to do fingerprint work in 1969, she had taken only two proficiency tests,
one about fifteen to seventeen years ago and the second about five years ago. According to
Chong, “ The earlier test was an “ FBI TEST THAT TIME, I TOOK IT AND I DID THE
LATENT COMPARISON WITH I THINK THE HAND PRINT INSTEAD OF THE
FINGERPRINT THAT TIME, AND THEN LATER THE ANSWER WAS SCORE AS
8
WRONG THAT TIME BUT THEN CHIEF TOM MURPHY... RECORRECTED MY WORK,
THEN HE SAID I WAS RIGHT AT THE END.” (RT 231).
LAW AND ARGUMENT
I.
INTRODUCTION
With one important exception to be discussed below at page 76-80, the admissibility of
expert testimony based upon fingerprint evidence to prove identity is well established in every
jurisdiction of the United States. See generally, David Faigmann, Fingerprint Identification:
Legal Issues, in 2 Modern Scientific Evidence: The Law and Science of Expert Testimony § 21-
1.0 at 51 (David L. Faigman et al. eds., West 1997). Less well known is the advent of judicial
acceptance of the technique during the 1920s. “ This evidentiary development (was)
characterized by meager judicial scrutiny combined with rapid spread of acceptance among
numerous jurisdictions. Rapid, that is, considering what it takes for a case to reach a state
supreme court, and considering that fingerprint identification presented the courts with a claim
that was still novel (infinite individuality) in an astonishingly strong form (infallibility). And
rapid considering the recent failings of anthropometry, the defective first child of forensic
individualization, which had (mistakenly) made much the same claims.” Id. at p. 51.¹
In California, fingerprint evidence was given less than meager judicial scrutiny prior to
its acceptance. In the early case of People v. Van Cleave (1929) 208 Cal. 295, the Court reversed
1
Anthropometry, or bertillonage, developed in the early 1880's by Alphonse Bertillion, a
clerk in the Paris prefecture of police, relied on the measurements of 11 different physical
features of prisoners to determine if they had prior arrests in spite of their giving aliases to the
police. This supposedly “infallible” system was abandoned in the United States in the early
1900s when it was discovered that some prisoners, contrary to the theory, had indistinguishable
anthropometric measurements. Id. at p. 51 n. 2.
A similar phenomenon may be developing with respect to the “infallible” science of
DNA testing.See, Mismatch Calls DNA Tests Into Question, USA TODAY, February 8, 2000, p.
1(“Great Britian’s national DNA database, the world’s largest crime-solving computer system,
has mistakenly matched an innocent man to a burglary-a one-in-37 million possibility that
American experts call ‘mind-blowing’”).
9
a conviction based on fingerprint evidence because of the erroneous admission of a police
fingerprint card that implied to the jury that the defendant had previously been in police custody.
The Court simply assumed, with no discussion of the scientific issues involved, that the
testimony of a fingerprint expert was properly before the jury. Seventeen years later, in People v.
Adamson (1946) 27 Cal.2d 478, 495, the Court declared, again without any discussion, that
“(f)ingerprint evidence is the strongest evidence of identity....” Thus, by the time the Court held
in People v. Kelly (1976) 17 Cal.3d 24, 31-32 that “(w)hen identification is chiefly founded upon
an opinion which is derived from utilization of an unproven process or technique, the court must
be particularly careful to scrutinize the general acceptance of the technique”, fingerprint
evidence had already been exempted from this scrutiny because it was simply assumed to be a
proven process. The only indication the Court has ever given that fingerprint evidence should be
subjected to the same scrutiny as other expert evidence came when the Court declared in 1993
that in the absence of “ competing expert testimony”, it is “unreasonable for defendant to suggest
that the process might somehow have captured a fingerprint which did not exist, transformed
some other image into a fingerprint, or changed the fingerprint of another person into one which
matched defendant's.” People v. Webb (1993) 6 Cal.4th 494, 524 [laser procedure for visualizing
latent fingerprints not subject to Kelly test because the familiar image of the fingerprint makes
reliability of the process readily apparent].
The assumption that the fingerprint process is reliable can no longer be sustained.
Forensic scientists, and even fingerprint experts themselves, are now calling into question the
fundamental scientific premises upon which fingerprint evidence is based. In these
circumstances, under Kelly, "defendant is not foreclosed from showing new information which
may question the continuing reliability of the test in question or to show a change in the
consensus within the scientific community concerning the scientific technique". People v. Smith
(1989) 215 Cal.App.3d 19, 25;See also, People v. Soto, (1999) 21 Cal. 4th 512, 540-541 n. 31 ,
(“In a context of rapidly changing technology, every effort should be made to base (decision) on
10
the very latest scientific opinions...”); People v. Allen (1999) 72 Cal. App. 4th 1093, 1101(“The
issue is not when a new scientific technique is validated, but whether it is or is not valid; that is
why the results generated by a scientific test once considered valid can be challenged by
evidence the test has since been invalidated.”)
The question here is not the uniqueness and permanence of entire fingerprint patterns,
consisting of hundreds of distinct ridge characteristics. Rather, the question is far more specific:
Is there a scientific basis for a fingerprint examiner to make an identification, of absolute
certainty, from a small distorted latent fingerprint fragment, revealing only a small number of
basic ridge characteristics such as the ten characteristics identified by the lab technician in this
case. There are two fundamental premises that underlie such an identification: First, that two or
more people cannot possibly share this number of basic ridge characteristics in common; and
second, that fingerprint examiners can reliably assert absolute identity from small latent print
fragments despite the unknown degree of distortion and variability from which all latent prints
suffer. With the issue properly framed, it is readily evident that the People cannot demonstrate
the various indicia of scientific reliability set forth by our Supreme Court in People v. Kelly
(1976) 17 Cal.3d 24, 31-32, and People v. Leahy (1994) 8 Cal. 4th 587 and elaborated upon by
the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113
S.Ct. 2786, 125 L. Ed. 2d 469 (1993) and KUMHO Tire Company, Ltd. v. Carmichael, 119 S.Ct.
1167 (1999).
First, there has been no testing of either of the two fundamental premises that underlie
the proffered identification. The failure to test these premises has been repeatedly recognized by
various scientific commentators.
Second, there is no known error rate for latent fingerprint examiners. Any claim that the
error rate is “zero” is patently frivolous in light of the fact that “ both here and abroad there have
been alarming disclosures of errors by fingerprint examiners.”Paul Giannelli and Edward
Imwinkelried, 1 Scientific Evidence (3d. Ed 1999)§ 16-1, p. 740-741. It is also belied by the
11
alarmingly high number of misidentifications that have occurred on latent print examiner
proficiency exams. (See, infra at p. 48).
Third, fingerprint examiners do not possess uniform objective standards to guide them in
their comparisons. To the contrary, there is complete disagreement among fingerprint examiners
as to how to characterize particular characteristics of a print, and as to how many points of
comparison are necessary to make an identification, and many examiners now take the position
that there should be no objective standard at all. As Ms. Chong testified in this case, “some
people might see a bifurcation as a ridge ending (and) some people might see (i)t as vis-versa.
And then some people might see a short ridge as being a dot...It depends on the persons who
(are) looking at the fingerprint, how they interpret that fingerprint to be.”(RT 224).
Ms. Chong is not alone in her opinion that fingerprint identification is a subjective
process. She indicated that one of her instructors was Royal Canadian Mounted Police expert
David Ashbaugh. (RT 204, 218). In his recent book, which many in the fingerprint field are
describing as the definitive source, Mr. Ashbaugh repeatedly stresses that “(t)he opinion of
individualization or identification is subjective.” David Ashbaugh, Quantitative-Qualitative
Friction Ridge Analysis: An Introduction to Basic and Advanced Ridgeology, 103 (CRC Press,
Oct. 1999) [hereinafter Ashbaugh, Basic and Advanced Ridgeology]. See also, David Stoney,
Fingerprint Identification: Scientific Status, in 2 Modern Scientific Evidence: The Law and
Science of Expert Testimony § 21-2.1.2 at 65 (David L. Faigman et al. eds., West 1997)(“In
fingerprint comparison, judgments of correspondence and the assessment of differences are
wholly subjective: there are no objective criteria for determining when a difference may be
explainable or not.”).
Fourth, there is not a general consensus that fingerprint examiners can reliably make
identifications on the basis of only ten matching characteristics. “There is no consensus on the
number of points necessary for an identification. In the United States, one often hears that eight
or ten points are ‘ordinarily’ required. Some local police departments generally require 12 points.
In England, many examiners use 16 points as a rule of thumb. In France, the required number
used most often is 24 while the number is 30 in Argentenia and Brazil.” Paul Giannelli and
Edward Imwinkelried, 1 Scientific Evidence (3d. Ed 1999)§ 16-7(A), p. 768. In England, a 16
point standard was adopted after it was discovered that prints from two different individuals
12
shared from 10 to 16 points of similarity. I. W. Evett and R.L. Williams, A Review of the Sixteen
Point Fingerprint Standard in England and Wales, (1996) 12(1) The Print 1,4,
http://www.scafo.org/library/120101.html² (“Experts [in Britian] appeared to have a
particularily poor regard for the fingerprint profession in the USA where there is no national
standard. Cases of wrongful identification which had been made by small bureaus in the USA
were cited as being symptomatic of a poor system and the dominant view was that such
unfortunate events would not have occurred had there been a 16 points standard in operation”).
Even matches that are based on 16 points of comparison and that have been verified by a second
or third analyst have been shown to be in error. See, James E. Starrs, Judicial Control Over
Scientific Supermen: Fingerprint Experts and Others Who Exceed The Bounds, (1999) 35 Crim.
L. Bull. 234, 243-246 (describing two cases in England in 1991 and 1997 in which
misidentifications were made despite the fact that the British examiners insist on 16 points for an
identification and triple check fingerprint identifications)(hereinafter “Scientific
Supermen”);Paul Giannelli and Edward Imwinkelried, 1 Scientific Evidence (3d. Ed 1999)§ 16-
1, p. 740-741(discussing same cases)(“Fingerprint identification is not as infallible as many
laypersons assume it to be.”).³
Fifth, the professional literature of the fingerprint community confirms the scientific
bankruptcy of the field. As David Ashbaugh acknowledges, historically
2
The Print is the official publication of the Southern California Association of
Fingerprint Officers, an association for scientific investigation and identification since 1937.
3
Professor Starrs’ use of the term “Scientific Supermen” is used derisively to refer to a
tendency on the part of police fingerprint technicians to testify to feats beyond the capacity of
mere mortals. A good illustration of such testimony was provided by Wendy Chong in this case.
She testified under oath that she performs approximately 60,000 latent fingerprint comparisons a
year.(RT 205) Assuming she works 365 days a year, that works out to 164.38 comparisons a day.
Assuming further she works straight through without break on nothing but latent comparisons for
8 hours per day, she would be doing 20.54 comparisons per hour, which leaves her 2.92 minutes
for each comparison. Not even a Robotic Superman could maintain such a schedule.
13
(m)ost efforts to describe or defend the evaluative identification process were
more an exercise in reciting rhetoric and dogma as opposed to describing a
scientific process. Specific facts and logical interpretation were conspicuous by
their absence....A fundamental circumstance that helped the new identification
process gain acceptance was the fact that few identification specialists were
challenged in court. Legal counsel shied away from dwelling on a science that
was considered exact and infallible, a belief that was difficult to dispel without
adequate and structured literature being available. Most challenges were
haphazard at best, usually ill-prepared, and often confusing. The majority were
doomed to fail. Each failure further entrenched the infallibility of the science.
It is difficult to comprehend that a complete scientific review of friction ridge
identification has not taken place at some time during the last 100 years. A
situation seems to have developed where this science grew by default. This is
especially alarming in light of the magnitude of change contained in the new
identification philosophy put forward in 1973(abandoning an objective standard
of a set number of similarities). Had challenges periodically surfaced, not only of
the new process but the whole basis of friction ridge identification, they would
have benifited all. Challenges should be welcomed within a science as an
opportunity to present the founding premises and demonstrate the strength of
current methodologies. Challenges lead to open debate, published articles, and a
platform of discussion from which all can learn.
(Ashbaugh, Basic and Advanced Ridgeology, supra, at 3-4 ).
Sixth, latent fingerprint identifications are analogous to other techniques, such as DNA
analysis, handwriting analysis and hair fiber comparisons, that courts, in the wake of a new
skepticism toward junk science , have now found to be scientifically unreliable and hence
inadmissible. People v. Venegas (1998) 18 Cal.4th 47 excluded previously accepted RFLP-DNA
testing conducted by the F.B.I. because that agency had not followed correct scientific
procedures.The United States Supreme Court's decisions in Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S.. 579 and Kumho Tire Co. V. Carmichael (1999)
__U.S.__, 119 S.Ct. 1167, and our own Supreme Court’s decision in Venegas and Leahy
demand that scientific evidence be based on reliable and generally accepted "scientific"
principles and methods, and that only correct scientific procedures be used in each case.
Citing Daubert or Kumho Tire, several recent federal cases have held that some
traditionally accepted techniques, such as handwriting comparison (United States v. Santillan
(N.D. Cal. 1999) __F.Supp.__,1999 WL 1201765; United States v. Hines (D. Mass. 1999) 55
Supp. 62;United States v. McVeigh, 1997 WL 47724 (D.Colo.Trans.Feb. 5, 1997); United States
14
v. Starzecpyzel (S.D.N.Y. 1995) 880 F. Supp. 1027, 1038 and hair comparison (See Williamson
v. Reynolds (E.D. Okla. 1995) 904 F. Supp. 1529, 1558, rev’d on other grounds (10th Cir. 1997)
110 F. 3d 1523), are no longer supported by current scientific research. And in an analogy even
closer to the context of fingerprints, the Washington Court of Appeals has recently reversed an
aggravated murder conviction because the state did not establish that latent earprint
identification was generally accepted in the forensic science community, as required for
admissibility under the Frye test. State v. Kunze (1999) 97 Wash.App. 832, 988 P.2d 977.
As these cases illustrate, the fact that an allegedly scientific procedure has been accepted
by courts in the past does not insulate that procedure from challenge based on advances in
scientific thinking. Northern California Federal District Court Judge Lowell Jensen put the
matter bluntly: “The government is correct in their assertion that pre-Daubert/Kumho/ Ninth
Circuit precedent supports the admissibility of (handwriting) testimony; however, the world has
changed. The Court believes that... a past history of admissibility does not relieve this Court of
the responsibility of now conducting Daubert/Kumho analysis as to this proffered expert
testimony.” United States v. Santillan (N.D. Cal. 1999) __F.Supp. __,1999 WL 1201765 at p. 4.
See also,United States v. Hines (D. Mass. 1999) 55 F.Supp. 62, 67(“The Court is plainly inviting
a reexamination even of ‘generally accepted’ venerable, technical fields.”).
Our Supreme Court is in agreement with this forward-looking approach. Most recently,
in People v. Soto, (1999) 21 Cal. 4th 512, 540-541 n. 31 , the Court emphasized that “in a context
of rapidly changing technology, every effort should be made to base (decision) on the very latest
scientific opinions...”See also, People v. Allen (1999) 72 Cal. App. 4th 1093, 1101(“The issue is
not when a new scientific technique is validated, but whether it is or is not valid; that is why the
results generated by a scientific test once considered valid can be challenged by evidence the
test has since been invalidated.”);People v. Smith (1989) 215 Cal.App.3d 19, 25 [263 Cal.Rptr.
678] [in determining whether a particular technique is generally accepted "defendant is not
foreclosed from showing new information which may question the continuing reliability of the
15
test in question or to show a change in the consensus within the scientific community concerning
the scientific technique"].)
Seventh, partial latent fingerprint identifications do not have any non-judicial
applications. As Ashbaugh puts it, “ The failure of the identification community to challenge or
hold meaningful debate can also be partly attributable to the fact that the friction ridge
identification science has been basically under the control of the police community rather than
the scientific community. In the eyes of many police administrators, friction ridge identification
is a tool of solving crime, a technical function, as opposed to a forensic science.”Ashbaugh,
Basic and Advanced Ridgeology, supra, at 4.When scientists other then police latent fingerprint
technicians have looked into the reliability of using computer-scanned complete fingerprints for
the purpose of computer security systems in the emerging science of biometrics, they have found
that fingerprinting is not reliable enough to use as a stand-alone identification technique. (See,
infra at p. 28)
In addition to these various factors, the lack of scientific reliability of the government’s
fingerprint evidence has been most dramatically demonstrated by a test that the F.B.I. recently
performed specifically for the purpose of defeating a Daubert challenge to the admissibility of
fingerprint evidence in United States v. Byron C. Mitchell (E.D. Pa. 1999)(Criminal No. 96-
00407.)
4
In an apparent effort to demonstrate that different fingerprint examiners will, at least,
be able to reach the same conclusion when they are presented with the same data, the
government provided the two latent prints at issue in that case, along with Mr. Mitchell’s inked
prints, to 53 different law enforcement agencies. Contrary to the government’s expectations,
however, 23% of the responding agencies found that there was an insufficient basis to make an
identification with respect to one of the two latents and 17% found an insufficient basis as to the
4
Following an extensive evidentiary hearing, the district court denied the Daubert
challenge in Mitchell. Unfortunately, the court did not write an opinion.Most of the Daubert
pleadings in the case are available online at http://www.onin.com/fp/fphome.html.
16
other. The government’s experiment thus perfectly illustrates how subjective latent print
identifications really are and how unreliable their results can be.
Finally, the unreliability of latent fingerprint identifications has already been judicially
recognized. In the only known fingerprint case in which a federal trial court has performed the
type of analysis that is now mandated by Daubert, the district court excluded the government’s
fingerprint identification evidence, finding that there was no scientific basis for the latent print
examiner’s opinion of identification. United States v. Parks (C.D. Cal. 1991) (No. CR-91-358-
JSL) . The district court in Parks reached its determination after hearing from three different
fingerprint experts produced by the government in an effort to have the evidence admitted. In
excluding the evidence, the district court recognized, among other things, the lack of testing that
has been done in the field, the failure of latent fingerprint examiners to employ uniform
objective standards, and the minimal training that latent print examiners typically receive.
Accordingly, for all of the foregoing reasons, Mr. Nawi requests that this Court preclude
the government from introducing its fingerprint identification evidence at his upcoming trial.
II.
FINGERPRINT FUNDAMENTALS
An average human fingerprint contains between 75 and 175 ridge characteristics. An
Analysis of Standards in Fingerprint Identification, FBI L. Enforcement Bull., June 1972, at 1
[hereinafter FBI, Fingerprint Identification]. These ridge characteristics generally consist of a
few different types, although there is no standard agreement among fingerprint examiners as to
either the precise number or nomenclature of the different characteristics. James F. Cowger,
Friction Ridge Skin: Comparison and Identification of Fingerprints at 143 (1983) (“The terms
used to define and describe these characteristics vary markedly among writers in the field and
differ even among examiners depending upon the organization in which they were trained.”).
The ridge characteristics most commonly referred to are: 1) islands, also referred to as dots,
17
which are single independent ridge units; 2) short ridges, in which both ends of the ridge are
readily observable; 3) ridge endings, where a ridge comes to an abrupt end; 4) bifurcations, in
which the ridge forks into two; 5) enclosures, which are formed by two bifurcations that face
each other; 6) spurs, where the ridge divides and one branch comes to an end; 7) cross-overs, in
which a short ridge crosses from one ridge to the next; and, 8) trifurcations, in which two
bifurcations develop next to each other on the same ridge. John Berry, The History and
Development of Fingerprinting, in Advances in Fingerprint Technology at 2 (Henry C. Lee & R.
E. Gaensslen eds., 1994); Ashbaugh, Basic and Advanced Ridgeology, supra, at 138-143.
While some occasional research has been done with respect to the relative frequencies
with which these and other characteristics occur, no weighted measures of the characteristics
have ever been adopted by fingerprint examiners on the basis of these studies. Research,
moreover, has shown that different fingerprint examiners hold widely varying opinions regarding
which characteristics appear most commonly. James W. Osterburg,
An Inquiry Into the Nature
of Proof, 9 J. of Forensic Sci. 413, 425 (1964) (“Clearly, subjective evaluation of the
significance to be attached to a fingerprint characteristic is suspect.”).
All prints, both inked and latent, are subject to various types of distortions and artifacts.
David Ashbaugh, The Premises of Friction Ridge Identification, Clarity, and the Identification
Process, 44 J. of Forensic Identification 499, 513 (1994) [hereinafter Ashbaugh, Premises]. The
most common type being pressure distortion which occurs when the print is being deposited. Id.
Other types of distortion can be caused by the condition or shape of the surface on which the
print has been deposited and by the mediums used to develop and lift the print. Ashbaugh, Basic
and Advanced Ridgeology, supra, at 114-128. Significantly, distortion can cause a ridge
characteristic to appear as something other than what it really is. Id. at 109; David A. Stoney &
John I. Thornton, A Critical Analysis of Quantitative Fingerprint Individuality Models, 31 J. of
Forensic Sci. 1187, 1193 (1986) .
18
For example, a rounded surface, such as a water heater, can cause distortions which can
lead to misidentifications. Ashbaugh, Basic and Advanced Ridgeology, supra, at 115-116. Dirty
surfaces, such as a water heater in a garage, may not accept all the matrix available during
deposition and the resulting print can appear blotchy, have areas missing, or generally lack
detail. Id. at 116. The type of powder used to lift the prints in this case “ tends to fill in third level
detail and may appear to alter second level detail.”Id. at p. 121. And when, as in this case, a
developed friction ridge print is lifted with tape, “(i)mproper procedures, and especially efforts to
correct those improper procedures , can cause various alterations to the lifted print.” Id. at 117.
As Wendy Chong confirmed in this case, “SOMETIMES THE PRINTS CAN BE
SMUDGED, THERE COULD BE SCARS TO IT, IT COULD BE MOVEMENT ON IT,
MAYBE THE FINGERPRINTS WASN'T ROLLED COMPLETELY, IT COULD BE A
NUMBER OF FACTORS.” See also, William Leo, Distortion Versus Dissimilarity in Friction
Skin Identification, 15(2) The Print 1 ( March/April 1999)(“Distortion... is commonly found in
both latent and exemplar prints that have the same origin. Examples of distortion can be noted
when occurring from any of the following conditions--—overlaid prints, pressure reversals,
background interference, slippage, or from any circumstance that would change or misrepresent
the appearance or shape of one or both prints that are being compared.”). There have been no
studies done to determine the frequency with which such distortions occur or how they can be
accounted for so as to prevent a misidentification.
Latent print examiners make identifications when they find a certain number of ridge
characteristics to be in common, both in terms of type and location, on the two prints that they
are comparing. FBI, Fingerprint Identification, supra . As discussed further below, there is
considerable disagreement among latent print examiners as to how many common characteristics
should be found before an identification is made. Many examiners, including the SFPD lab
technician in this case, currently believe that there should be no minimum standard whatsoever
19
and that the determination of whether there is a sufficient basis for an identification should be
left entirely to the subjective judgment of the individual examiner.
It has been well documented that different people can share a limited number of
fingerprint ridge characteristics in common. See, Y. Mark and D. Attias, What Is the Minimum
Standard for Characteristics for Fingerprint Identification (1996) Fingerprint Whorld 148(“ In
October 1995, while working with the AFIS and comparing a latent taken from a crime scene
with a list of possible suspects, we found a comparison which had 7 identical characteristics.
Assuming that the fingerprint from the crime scene was only a partial print and it contained only
the specific area of the 7 points, one cannot rule out the idea that not only a junior examiner, but
an expert with many years of experience behind him could arrive at a mistaken identity,); James
Osterburg, The Crime Laboratory : Case Studies of Scientific Criminal Investigation
(1967)(documenting a case where two individual shared 10 points of similarity.); Ene-Malle
Lauritis, Some Fingerprints Lie, National Legal Aid Defender Association, The Legal Aid
Briefcase, October 1968, p.129 (Describing a case where the latent and known prints shared 14
points of similarity and 3 disimilarities), J. Edgar Hoover, Hoover Responds to “Some
Fingerprints Lie”, The Legal Aid Briefcase, June 1969, p.221(Not disputing the 3 dissimilarities
in the same case, Hoover declares ipse dixit that “[a]ny two fingerprints possessing as many as
fourteen identical ridge characteristics...would contain no dissimilar ridge characteristics.”) See
also, United States v. Parks (C.D. Cal. 1991) (No. CR-91-358-JSL), discussed infra at p. 72 76
( Steven Kasarsky, a board certified member of the IAI and an employee of the United States
Postal Inspection Service, testified that cases have occured in which there were 10 points of
similarity and 1 point of dissimilarity); People v. John Davenport, S. F. Muni Ct. No. 198530,
Preliminary Hearing Transcript, August 30, 1978, p. 30 ( San Francisco Police Department
fingerprint expert Michael Byrne testified that “ I [have] seen a case one time that had nine
points; however, it had a dissimilarity.) As indicated above at page 12, other cases have been
documented in which different individuals have shared 10 and even 16 points of similarity.
20
There have been no scientific studies performed that can reasonably serve to predict the
probability of such events occurring.
Lacking any such probability studies, latent print examiners do not offer opinions of
identification in terms of probability. Indeed, latent print examiners are actually prohibited from
doing so by the rules of their primary professional association, the International Association of
Identification (IAI) and by the F.B.I.’s Scientific Working Group on Friction Ridge Analysis,
Study, and Technology (hereinafter SWGFAST) .
5
Instead, latent print examiners make the
claim of “absolute certainty” for their identifications. Examiners provide an opinion that the
latent print at issue was made by a particular finger to the exclusion of all other fingerprints in
the world. Such assertions of absolute certainty, however, are inherently unscientific. Here is
what one government expert has had to say on this issue:
Imposing deductive conclusions of absolute certainty upon the
results of an essentially inductive process is a futile attempt to
force the square peg into the round hole. This categorical
requirement of absolute certainty has no particular scientific
principle but has evolved from a practice shaped more from
allegiance to dogma than a foundation in science. Once begun, the
assumption of absolute certainty as the only possible conclusion
has been maintained by a system of societal indoctrination, not
reason, and has achieved such a ritualistic sanctity that even mild
suggestions that its premise should be re-examined are instantly
regarded as acts of blasphemy. Whatever this may be, it is not
science.
5
In 1995 the FBI hosted a group of latent print examiners to discuss development of
consensus standards which would preserve and improve the quality of service provided by the
latent print community nationwide. The Scientific Working Group on Friction Ridge Analysis,
Study and Technology (SWGFAST) was formed and since then, SWGFAST expanded to 32
individuals representing 25 federal, state and local law enforcement agencies and crime
laboratories, and developed a limited set of basic draft guidelines for hiring, training and quality
assurance. The Quality Assurance Guidelines , considered by SWGFAST to be the minimum
necessary to perform consistent quality examinations, provide in Section 2.1.5 that “(f)riction
ridge identifications are absolute conclusions. Probable, possible, or likely identification
conclusions are outside of the acceptable limits of the science of friction ridge identification.”
SWGFAST Quality Assurance Guidelines (Dec. 1997),
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