21
David Grieve, Possession of Truth, 46 J. of Forensic Identification 521, 527-28 (1996) .
In this case, Wendy Chong first testified on cross examination that her absolute
identification was based on an arbitrary selection of the number 10 as the proper standard of
identification (“I JUST LIKE THE NUMBER 10").Upon further questioning, she implied,
although she never stated, that her identification in this case was additionally based on
“poroscopy” and “ridgeology”. As Ms. Chong testified, some latent print examiners purport to
look for additional identifying features, beyond the basic ridge characteristics set out above, such
as small edges on the ridges and the relative location of sweat pores. This technique was coined
“ridgeology” by David Ashbaugh in 1983, who now admits that “the word
ridgeology was
originally an attention-getting device.”Ashbaugh, Basic and Advanced Ridgeology, supra, at 8.
Ashbaugh posits that an identification can be made only after looking at “first level detail”(class
characteristics), “second level detail” (specific friction ridge paths, e.g. ridge dot, bifurcation,
etc.), and “third level detail” (small shapes on the ridge, the relative location of pores, and the
small details contained in accidental damage to the friction ridges). Id. at 136-144. In
Ashbaugh’s mind, it is the presence of “third level detail” which allows the fingerprint
profession to abandon an objective standard based on a minimum number of points of similarity
of “second level detail.” Id. at p. 143.
However, the pseudo-scientific names used by Ashbaugh and others should not obscure
the fact that because “prints of friction skin are rarely well recorded . . . comparison of pore or
edges is only rarely practical.” Cowger, supra, at 143. See also,An Analysis of Standards in
Fingerprint Identification, FBI Law Enforcement Bulletin, June 1972, p. 7(“FBI technicians
know of no case in the United States in which pores have been used in the identification of
fragmentary impressions. To the contrary, our observations on pores have shown that they are
not reliably present and that they can be obliterated or altered by pressure, fingerprint ink, or
22
developing meia.”). Dusty Clark, one of the California Department of Justice’s most experienced
latent fingerprint examiners, very recently had this to say about the scientific reliability of
“poroscopy” and “ridgeology”:
When making an identification comparison between a known and unknown
impression, Latent Print Analysts rely on friction ridge characteristics in
concurrence between the two impressions. Those that do not quantify (count
points) rely on third level detail (edgeoscopy, poroscopy, and ridge shapes) to
make an analysis, comparison, and evaluation. These analysts state that the
comparison is a qualitative and quantitative process.
The qualitative process that is applied depends on the validity of what is seen to
the examiner. There is such a degree of variation of appearance in the 3rd level
detail due to pressure, distortion, over or under processing, foreign or excessive
residue on the fingers, surface debris and surface irregularity, to name a few. The
repeatability of the finite detail that is utilized in the comparison process has
never been subjected to a definitive study to demonstrate that what is visible is
actually a true 3rd level detail or an anomaly.
The problem that occurs is when third level detail is not present, it becomes solely
a quantitative process of Galton 2nd level detail. The non- point counters refuse to
put a number on the quantitative portion of their comparison analysis opting for
the rhetorical response of "Show me the Print." There has to be something to
measure and count if the comparison process includes "quantitative". If the
analysts do not quantify their analysis then their opinion of identity is strictly
subjective. A subjective analysis without quantification makes the identification
process as reliable as astrology. If one does not quantify, is it an ID when a warm
and fuzzy feeling overwhelms you? What happens if my warm and fuzzy feeling
is different that yours?...
When discussing this issue at the 1999 Calif. Div. IAI Seminar, the audience of
approximately 120 persons was asked to raise their hand if ever in their career that
they had to rely on that one 3rd level detail to make the identification. Not one
single hand was raised!
That brings me to the topic of this article regarding the abandonment of counting
points and relying on Ridgeology for individualization. Ridgeology hasn't been
scientifically proven to be repeatable, and it's application is not standardized.
Dusty Clark, What’s The Point (Dec. 1999), http://www.latent-prints.com/id_criteria_jdc.htm
6
6
Latent-prints. com is a forensic platform focused primarily on latent fingerprints. It's
purpose is for the sharing of articles, ideas, and discussion regarding the impression evidence
sciences.
23
III
THE LEGAL STANDARD TO BE APPLIED
A.
The Subjective and Arbitrary Technique Used In This Case To Identify Partial
Latent Prints With Absolute Certainty Must Meet the Evidentiary Standard of
People v. Kelly (1976) 17 Cal.3d 24.
The admissibility of a “new” scientific technique depends on whether it was derived from a
method that is generally accepted to be reliable. To make this determination, the court must
apply the standard set forth in People v. Kelly (1976) 17 Cal.3d 24. The Kelly standard has three
“prongs”:
(1) it must be established, usually by expert testimony, that the
scientific methods utilized are generally accepted as reliable by the
relevant scientific community,
(2) the witness furnishing such testimony must be properly
qualified as an expert to give an opinion on the subject, and
(3) the proponent of the evidence must demonstrate that correct
scientific procedures were used in the particular case.
Kelly, 17 Cal.3d at p. 30 [emphasis in original].
Importantly for the present case, the Kelly rule does not cease to exist once an appellate
court holds that a particular technique is generally accepted. As recently emphasized in People v.
Venegas (1998) 18 Cal.4th 47, 52: “ An important corollary of that rule, however, is that if a
published appellate decision in a prior case has already upheld the admission of evidence based
on such a showing, that decision becomes precedent for subsequent trials in the absence of
evidence that the prevailing scientific opinion has materially changed.” See also, People v. Kelly,
17 Cal.3d at p. 32.("(O)nce a trial court has admitted evidence based upon a new scientific
technique, and that decision is affirmed on appeal by a published appellate decision, the
precedent so established may control subsequent trials, at least until new evidence is presented
reflecting a change in the attitude of the scientific community."). The corollary to the Kelly rule
is well established. See,People v. Soto, (1999) 21 Cal. 4th 512, 540-541 n. 31(“(I)n a context of
rapidly changing technology, every effort should be made to base (decision) on the very latest
24
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.”);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 test in
question or to show a change in the consensus within the scientific community concerning the
scientific technique"].)
Venegas also clarified that “the Kelly test’s third prong does not apply the Frye
requirement of general acceptance -it assumes the methodology and technique in question has
already met that requirement. Instead, it inquires into the matter of whether the procedures
actually utilized in the case were in compliance with that methodology and technique, as
generally accepted by the scientific community. ...The third prong inquiry is thus case specific;
‘it cannot be satisfied by relying on a published appellate decision.’” 18 Cal 4th at 78 (emphasis
added).
In People v. Farmer (1989) 47 Cal. 3d 888, 913 the Court had stated that “ careless
testing affects the weight of the evidence and not its admissibility...” However, in Venegas the
Court clearly retreated: “ Our reference to ‘careless testing affecting the weight of the evidence
and not its admissibility’ in Farmer ...was intended to characterize short-comings other than the
failure to use correct, scientifically accepted procedures such as would preclude admissibility
under the third prong of the Kelly test.“ 18 Cal. 4 th at p.80 (emphasis in original). See also,
People v. Soto (1999) 21 Cal. 4th 512, 519 (“The proponent of the evidence must also
demonstrate that correct scientific procedures were used.”)
The role of the Court, when applying the general acceptance test to fingerprint evidence,
is to determine “the existence, degree, (and) nature of a scientific consensus or dispute (with) the
interpretative assistance of qualified live witnesses subject to a focused examination in the
25
courtroom.”People v. Soto (1999) 21 Cal. 4th 512, 540-541 n. 31 The court must “ conduct a 'fair
overview' of the subject, sufficient to disclose whether 'scientists significant either in number or
expertise publicly oppose [a technique] as unreliable. People v. Reilly (1987) Cal. App.3d 1127,
1148, quoting from People v. Brown (1985) 40 Cal.3d 512, 533.
7
As Venegas teaches, “(i)n determining the question of general acceptance, courts must
consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific
technique.” 18 Cal. 4th at 85(emphasis added) And as Venegas also makes clear, the court’s role
in the inquiry is not one of abdication to the scientists. Thus, in Venegas, the Court adopted the
modified ceiling approach advocated in a 1992 National Research Council report,
notwithstanding that a 1996 National Research Council report, as well as numerous other
scientific articles authored by well-credentialed experts, and testimony from such experts at the
Kelly hearing, all assailed the approach as scientifically unsound. 18 Cal 4th at 86-89. Focusing
not only on scientific soundness, the Court defined the central issue to be whether the approach
was “‘forensically reliable’ in that it resolves any imprecision in the statistical calculations in a
way that preserves the constitutional presumption of the suspect's innocence.” 18 Cal 4th at 85.
The point here is that the court’s role in the inquiry is not one of a potted-plant.
7
When evaluating whether a scientific technique is generally accepted, the Court may take judicial notice
of transcripts of scientific testimony in previous hearings. Cal.Evid.Code Section 452(d). The Court may also
consider scientific and legal articles and judicial opinions from other jurisdictions, including decisions reached by
other members of the same court. People v. Brown (1985) 40 Cal.3d 512, 530; People v. Smith (1989) 215 Cal.
App..3d 19, 25 The defense refers in this pleading to scientific articles, evidence and testimony in United States v.
Byron Mitchell (E.D. Pa. 1999) and the ruling in United States v. Park (C.D. Cal. 1991)(No. CR-91-358-JSL). Full
transcripts of the testimony, articles and rulings referred to herein will be provided to the court and the People under
separate cover. Judicial notice of this material is therefore mandatory under People v. Smith. Id at 25
26
B.
The Court Must Look Beyond Forensic Science For Evidence of General
Acceptance.
The general acceptance test of Kelly cannot be met by showing that promoters and
practitioners of the method accept it to be reliable. The test is not whether a method is accepted
by those who have a personal or professional stake in its acceptance, but rather, whether it is
"accepted as reliable by the larger scientific community in which it originated." People v. John
W. 185 Cal. App.. 3d 801, 805 (1986); People v. Shirley 31 Cal.3d 18, 54 (1982).
Courts have also recognized that promoters and practitioners of a particular method "may be
too closely identified with the endorsement of [the technique] to assess fairly and impartially the
nature and extent of any opposing scientific views." Kelly, supra, 17 Cal.3d at 38. Thus, when
applying the Kelly standard, the court must look to experts who are "'impartial,' that is, not so
personally invested in establishing the technique's acceptance that he might not be objective
about disagreements within the relevant scientific community." People v. Brown, supra, 40
Cal.3d 512, 530; accord People v. Venegas, 18 Cal. 4th at 77 (“ FBI Agent Lynch, though
vigorously defending the merits of the FBI’s RFLP analytical procedures she had followed in
this case, did not purport to be qualified, as a molecular biologist or otherwise, to testify on
questions of general scientific acceptance of the validity of those procedures.”) In this regard,
the court should bear in mind that employees of forensic labs "have a clear pecuniary interest in
the acceptance of (forensic) evidence by the courts. The success of their employers and the
stability of their own employment depends upon continued use of (forensic) testing." Dan L.
Bark, DNA Identification: Possibilities and Pitfalls Revisited, 31 Jurimetrics J. 53, 79-80.
As Judge Dondero recently held in connection with DNA evidence in People v. Bokin,
the relevant scientific community for purposes of the prong one inquiry on DNA was the broader
community of molecular biologists and population geneticists and not simply the community of
forensic scientists using DNA technology. This ruling was dictated by relevant case law. See,
27
People v. Soto, 21 Ca. 4th at 515 (Issue is whether the RFLP statistical methodology “ is
generally accepted in the relevant scientific community of population geneticists.”); People v.
Venegas 18 Cal. 4th at 77 (“FBI Agent Lynch...did not purport to be qualified, as a molecular
biologist or otherwise, to testify on questions of general scientific acceptance of the validity
of...procedures.”);People v. Axell (1991) 235 Cal. App. 3d 836, 857(“The search for scientific
consensus must be from within ‘the particular field in which it belongs’. Since DNA profiling is
an amalgamation of primarily two disciplines, molecular biology and population genetics, it
appears logical to consider its acceptance by those communities for forensic use.”); People v.
Reilly (1987) 196 Cal. App. 3d 1127, 1138-1139(same).
In this case, “(t)he scientific knowledge supporting ridgeology has been extracted from
various related sciences such as embryology, genetics, and anatomy.”Ashbaugh, Basic and
Advanced Ridgeology, supra, at 8. In addition, as discussed below, the field of statistics is also
implicated. At a minimum, it should be shown that these disciplines generally accept the
reliability of making absolute identifications from a partial latent print on the basis of ten points
of comparison.
C.
Neither Acceptance of Fingerprint Evidence For Nonforensic Scientific Purposes
Nor Widespread Law Enforcement Use of Fingerprinting For Classification and
Other Nonevidentiary Purposes Establishes That Fingerprint Analysis of a Partial
Latent Print Is Reliable or Generally Accepted For Courtroom Use
A scientific technique may be reliable for some purposes and not for others. Indeed,
many techniques that have proven reliable for certain purposes in non-forensic settings have
been found unacceptable when used for forensic purposes. Polygraphs are one example. The
techniques used in polygraphs (monitoring heart rate, blood pressure, galvanic skin response)
have a number of accepted applications in physiological research and medicine. It does not
follow, however, that lie detection procedures which use these "accepted" procedures are
necessarily reliable for courtroom use. See, United States v. Scheffer (1998) 523 U.S. 303, 118
S.Ct 1261, 1266 n. 8. Hypnosis is another example. The use of hypnosis is well accepted for a
28
number of purposes in psychological research and in psychotherapy. But the California Supreme
Court held in People v. Shirley (1982) 31 Cal.3d 18 that the use of hypnosis for refreshing
witnesses' memories is not generally accepted.
It is anticipated that the People will make the argument that the identification of a partial
latent print based on ten points of identity must necessarily be accepted in the scientific
community because the identification technician employs procedures that are used and accepted
elsewhere in law enforcement and science for other purposes. For example, the FBI
Identification Division has been classifying and analysing fingerpint cards for purposes of
identification since 1924. See, Federal Bureau of Investigation, The Science of Fingerprints:
Classification and Uses (1979) p.1. Also, computer scientists in the field of biometrics are
beginning to study and use fingerprints for the purpose of establishing security systems for
access to computers or other uses. See, United States Government, The Biometric Consortium,
http://www.biometrics.org/. The argument is syllogistic, viz.: fingerprint analysis is accepted;
the SFPD fingerprint technicians uses fingerprint analysis; therefore the Lab’s fingerprint
analysis in all its variations is accepted.
The problem with this argument is that it fails to recognize the difficulties that may arise
from the transfer of technology from one application to another. An anology to DNA evidence
will illustrate this point. It is widely recognized that forensic DNA testing is more technically
demanding than other applications of DNA technology,
8
and that it involves additional critical
8
According to a report by the U.S. Congress' Office of Technology Assessment:
[i]t is generally agreed that applying DNA tests to forensic samples, especially criminal evidence,
potentially presents more difficulties than analyzing samples in basic research or clinical
diagnosis. Samples from crime scenes are frequently small and might be of poor quality because
of exposure to a spectrum of environmental onslaughts. And unlike paternity samples, where each
sample is from an identified source, the contributor to evidence from a crime scene is often
unknown.
OTA report, p. 59; see also Lander, DNA Fingerprinting on Trial, supra at 501 (use of RFLP analysis for medical
diagnosis does not mean the technique is reliable for forensic identification); NRC 1, p. 51-53 (discussing
differences between forensic and diagnostic applications of DNA technology); NRC II at 10 ( “Even with the best
laboratory technique, there is intrinsic, unavoidable variability in the measurements that introduces uncertainty that
can be compounded by poor laboratory technique, faulty equipment, or human error.”)
29
steps that do not arise in other applications (such as the matching and statistical estimation
steps
9
).
Fingerprint analysis presents the same sort of problems. The FBI has found that in order
to identify criminals from a ten finger fingerprint card, “ it is essential that standard fingerprint
cards and other forms used by the FBI be utilized. Fingerprints must be clear and distinct and
complete name and descriptive data required on the form should be furnished in all
instances.”The Science of Fingerprints: Classification and Uses (1979) p.1. In biometrics,a clear
fingerprint image is generated, usually by a high resolution digital camera behind a Plexiglas
plate where the users presents their finger. Adrian Dysart, Biometrics (Winter 1998),
http://www.monkey.org/~adysart/598/. Even with this high-tech method of collecting the print,
it is generally recognized that “ fingerprint verification systems are subject to a mimicry attack...
(that) can be avoid(ed) (only) by having thermal sensors detect subcutaneous blood vessels and
reject the sample if none are found”. Id. More significantly, it is generally recognized that
“biometrics are not reliable enough on their own to act as identifiers, but in conjunction with
other, more traditional forms of access control, such as passphrases and PINs, they provide a
considerable layer of security.” See also, Let Your Fingers Do the Logging In, Network
Computing, Issue 910, June 1, 1998 (“Unfortunately, some of the lowest-cost systems are simply
gadgets and too gimmicky for consideration in the enterprise. In our review of fingerprint
recognition devices in this issue, we found much of the current crop too insecure
and unreliable for practical enterprisewide
deployment.”)http://www.techweb.com/se/directlink.cgi?NWC19980601S0021.
For reasons already discussed, a person who deposits a latent print at a crime scene often leaves
a partial, unclear print in unknown envirornmental conditions, and the person obviously does not
leave behind subcutaneous blood vessels, passphrases, or PINs.
9
"Unlike many of the technical aspects of DNA typing that are validated by daily use in hundreds of
laboratories, the extraordinary population-frequency estimates sometimes reported for DNA typing do not arise in
research or medical applications that would provide useful validation of the frequency of any particular person's
DNA profile." NRC 1 at 77.
30
What must be considered under Kelly is whether the specific method that is being used in
this case to produce an opinion of absolute certainty as to identification is generally accepted to
be reliable as it was applied, not whether a similar method is accepted for another purpose. To
ask, in the abstract, whether fingerprint analysis in general is accepted as reliable by some
undefined relevant scientific community is meaningless.At this level of generality, and without
specific definition of either the relevant scientific community or the specific methods being
utilized, the answer is predictable, but irrelevant, much as it would be in a hypothetical case in
which a group of psychics, thinking they are scientists and believing they can make valid
fingerprint comparisons by holding the known and questioned prints to their turbaned heads, are
asked the question, “Is fingerprinting generally accepted in the scientific community as a reliable
means of human identification?”
Moreover, even as to forensic use of a particular method, our Supreme Court has
explicitly rejected “widespread use” by law enforcement as a surrogate for a searching inquiry
into whether impartial scientists accept a particular technique. In People v. Leahy (1994) 8 Cal.
4th 587, 605-606, the Court stated unambiguously :
The People observe that HGN testing has been used by law enforcement agencies
for more than 30 years.... In determining whether a scientific technique is "new"
for Kelly purposes, long-standing use by police officers seems less significant a
factor than repeated use, study, testing and confirmation by scientists or trained
technicians...To hold that a scientific technique could become immune from Kelly
scrutiny merely by reason of long- standing and persistent use by law enforcement
outside the laboratory or the courtroom, seems unjustified.
The United States Supreme Court agrees: “Respondent argues that because the
Government--and in particular the Department of Defense--routinely uses polygraph testing, the
Government must consider polygraphs reliable. Governmental use of polygraph tests, however,
is primarily in the field of personnel screening, and to a lesser extent as a tool in criminal and
intelligence investigations, but not as evidence at trials.... Such limited, out of court uses of
polygraph techniques obviously differ in character from, and carry less severe consequences
than, the use of polygraphs as evidence in a criminal trial. They do not establish the reliability of
31
polygraphs as trial evidence, and they do not invalidate reliability as a valid concern supporting
Rule 707's categorical ban.” United States v. Scheffer (1998) 523 U.S. 303, 118 S.C. 1261, 1266
n. 8.
IV
THE SUBJECTIVE AND ARBITRARY TECHNIQUE USED IN THIS CASE TO
IDENTIFY PARTIAL LATENT PRINTS WITH ABSOLUTE CERTAINTY CANNOT
BE CONSIDERED GENERALLY ACCEPTED FOR COURTROOM USE WITHOUT
CERTAIN INDICIA OF FORENSIC AND SCIENTIFIC RELIABILITY:EMPIRICAL
TESTING,ACCEPTABLE ERROR RATES, THE EXISTENCE AND MAINTENANCE
OF STANDARDS, PUBLICATION AND PEER REVIEW, AND RELIABLE NON-
JUDICIAL APPLICATIONS.
A. Introduction:The Need For Forensic Reliability
How do particular methods become generally accepted by the relevant scientific
community? One overriding principle put forth by our Supreme Court in Venegas is the concept
of “forensic reliability”. The Court upheld the FBI’s statistical calculation of DNA frequency
estimates in that case because the method of calculation was “‘forensically reliable’ in that it
resolves any imprecision in the statistical calculations in a way that preserves the constitutional
presumption of the suspect's innocence.” 18 Cal 4th at 85. See also, Id.at p. 87 (“We agree with
the Court of Appeal's further conclusion that ‘the evidence [is] also clear that the scientific
community regards the NRC statistical methodology as forensically reliable’-i.e., as selecting
figures that most favor the accused from the scientifically based range of probabilities.).
Judged by the standard of forensic reliability, the use of friction ridge characteristics to
identify with absolute certainty a partial latent print certainly does not resolve any imprecision in
the calculations in a way that preserves the constitutional presumption of the suspect's
innocence. On the contrary, it presumes the fingerprint examiner’s ability to determine the
suspect’s guilt with absolute certainty, even though, by the fingerprint profession’s own
admission, “(a) situation seems to have developed where this science grew by default.”
32
Ashbaugh, Basic and Advanced Ridgeology, supra, at 8. Frighteningly, Asburgh describes a
close-minded profession where
In the past the friction ridge identification science has been akin to a divine
calling. Challenges were considered heresy and challengers frequently were
accused of chipping at the foundation of the science unnecessarily. This cultish
demeanor was fostered by a general deficiency of scientific knowledege,
understanding, and self-confidence within the ranks of idenification specialists. A
pervading fear developed in which any negative aspect voiced that did not support
the concept of an xact and infallible science could lead to its destruction and the
destruction of the credibility of those supporting it....
This attitude has been reinforced by the friction ridge identification itself. The
role of the scenes of crime officer is continually emphasized in literature. Over the
last few years most advancements that have taken place within the science are
related to how friction ridge prints are developed, stored, or searched by
computers. As a result, most available funding is allotted to furthering those
developments. Little, if anything, has been reported on the importance and need
for scientific knowledge, understanding the evaluative identification process, or
the training necessary to be able to analyze, compare, and evaluate friction ridge
prints. Apparently, it is assumed that anyone has the ability to compare friction
ridge prints and form an unbiased opinion of individualization.
(Ashbaugh, Basic and Advanced Ridgeology, supra, at 4-
5.)
A “science” which has proceeded by default in the absence of scientific knowledge and
testing is the antithesis of a forensically reliable procedure as that term is used in Venegas. As in
Leahy, “(t)o hold that a(n) [unproven] scientific technique could become immune from Kelly
scrutiny merely by reason of long- standing and persistent use by law enforcement outside the
laboratory or the courtroom, seems unjustified.” 8 Cal. 4th at 606. The subjective and arbitrary
technique used in this case to identify partial latent prints must be subjected to strict scutiny
under Kelly because it is an "the unproven technique or procedure [that] appears in both name
and description to provide some definitive truth which the expert need only accurately recognize
and relay to the jury." Id. at 606.
The “science” of partial latent fingerprint analysis does not even satisfy the more liberal
definition of scientific reliability set out by the United States Supreme Court in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
10
In Daubert, the
10
In People v. Leahy (1994) 8 Cal. 4th 587,594 the Court concluded that Daubert affords
no compelling reason for abandoning Kelly in favor of the more "flexible" approach outlined in
Daubert. The Court “ deemed the more cautious Frye formulation preferable to simply
33
Supreme Court held that federal trial courts, when faced with a proffer of expert scientific
testimony, must determine at the outset whether the “reasoning or methodology underlying the
testimony is scientifically valid . . . .” Id. at 592-93, 113 S. Ct. at 2796. As the Court
recognized, in a case involving scientific evidence, evidentiary reliability will be based upon
scientific validity. Id. at 590 n.9, 113 S. Ct. at 2795 n.9. This standard applies both to “novel
scientific techniques” and to “well established propositions.” Id. at 592 n.11, 113 S. Ct. at 2796
n.11.
The Daubert Court suggested five factors that trial courts may consider in determining
whether proffered expert testimony is scientifically valid. The first factor is whether the “theory
or technique . . . can be (and has been) tested.” Id. at 593, 113 S. Ct. at 2796. As the Court
recognized, empirical testing is the primary criteria of science:
Scientific methodology today is based on generating hypotheses
and testing them to see if they can be falsified; indeed, this
methodology is what distinguishes science from other fields of
human inquiry. The statements constituting a scientific
explanation must be capable of empirical test. The criterion of the
scientific status of a theory is its falsifibility, or testability.
Id. at 593, 113 S. Ct. at 2796-97 (internal quotations and citations omitted). Our Supreme Court
recently put heavy reliance on this factor in People v. Soto, 21 Cal. 4th at 540.
submitting the matter to the trial court's discretion for decision in each case.”Id. at 595.
Elsewhere in the opinion, the Court refers to “Frye's ‘austere standard’" and its "essentially
conservative nature." Id at 595, 603. Since the Court explicitly held that Kelly is more cautious,
conservative, and austere than Daubert, it follows that a technique that cannot pass muster under
Daubert certainly must fail the more stingent Kelly test. Moreover, in applying Kelly, the Court
in Leahy relied on many of the indicia of scientific reliability found determinative in Daubert.
See Id. at 609 (To be qualified as a Kelly expert on an HGN test, witness must have “some
understanding of the processes by which alcohol ingestion produces nystagmus, how strong the
correlation is, how other possible causes might be masked, what margin of error has been shown
in statistical surveys, and a host of other relevant factors...”). The Daubert reliability factors are
therefore highly relevant to the Kelly standard. Even aside from Kelly, these factors are relevant
because “the reliability and thus the relevance of scientific evidence is determined.... under the
requirement of Evidence Code section 350, that '[n]o evidence is admissible except relevant
evidence.” In other words, even apart from Kelly, scientifically unreliable evidence is irrelevant
and hence inadmissible.
34
A second closely related factor that the Daubert Court suggested should “ordinarily” be
considered is the “known or potential rate of error” of the particular technique. Id. at 594, 113
S. Ct. at 2797. In this regard, the Court cited the Seventh Circuit’s decision in United States v.
Smith, 869 F.2d 348, 353-354 (7th Cir. 1989), in which the Seventh Circuit surveyed studies
concerning the error rate of spectograghic voice identification techniques. Id. As indicated in
n.10, supra, our own Supreme Court referred to this factor in Leahy.
A third factor pointed to by the Court is the “existence and maintenance of standards
controlling the technique’s operation.” Id. As an example, the Supreme Court cited the Second
Circuit’s opinion in United States v. Williams, 583 F.2d 1194, 1198 (2d Cir. 1978), in which the
Second Circuit observed that the “International Association of Voice Identification . . . requires
that ten matches be found before a positive identification can be made.” Id. In California, the
existence and maintenance of standards is a prerequisite to admissibility under prong three of
Kelly.
Fourth, the Daubert Court held that “general acceptance can . . . have a bearing on the
inquiry.” Id. “A reliability assessment does not require, although it does permit, explicit
identification of a relevant scientific community and an express determination of a particular
degree of acceptance within that community.” Id. (quoting United States v. Downing, 753 F.2d
1224, 1242 (3d Cir. 1985)). As the Court recognized, “widespread acceptance can be an
important factor in ruling particular evidence admissible and a ‘known technique which has been
able to attract only minimal support within the community’ . . . may properly be viewed with
skepticism.” Id. (quoting Downing, 753 F.2d at 1238)). Of course, in California, general
acceptance is a prerequisite to admissibility under prong one of Kelly.
Finally, the Daubert Court recognized that an additional factor which may be considered
“is whether the theory or technique has been subjected to peer review and publication.” Id. at
593, 113 S. Ct. at 2797. As the Court recognized, “submission to the scrutiny of the scientific
community is a component of ‘good science,’ in part because it increases the likelihood that
35
substantive flaws in methodology will be detected.” Id. Accordingly, “[t]he fact of publication
(or lack thereof) in a peer reviewed journal . . . [is] a relevant, though not dispositive,
consideration in assessing the scientific validity of a particular technique or methodology on
which an opinion is premised.” Id. at 594, 113 S. Ct. at 2797. Our Supreme Court recently put
heavy reliance on this factor in People v. Soto, 21 Cal. 4th at 540(The debate regarding the effect
of population substructuring on RFLP calculations was only resolved empirically by “extensive
literature in peer reviewed journals.”)
In providing the above factors, the Supreme Court emphasized that the inquiry under
Federal Rule of Evidence 702 is a “flexible one”and that, as such, additional factors may be
considered. Id. Several such additional factors have been suggested. For example, in United
States v. Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985), the court held that the following
factors were relevnt:
(1) the relationship of the technique to methods which have been
established to be reliable;
(2) the qualifications of the expert witness testifying based on the
methodology;
(3) the non judicial uses to which the method has been put
As demonstrated below, the government’s proposed fingerprint identification evidence
fails with respect to each and every reliability factor that has been identified by the Supreme
Court.
B.
The Lack Of Scientific Reliability As Measured By the Daubert Factors
1.
The Failure to Test the Fundamental Hypothesis Upon Which Latent Print
Identifications Are Based
The proffered fingerprint identification evidence in this case fails the most basic criteria
of science: The premises underlying the identification have not been tested to determine if they
can be falsified. As discussed above, there are two fundamental premises to a latent print
identification of the type at issue here: First, that it is impossible for two or more people to have
prints showing a limited number of ridge characteristics in common such as the ten
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