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whatever procedure each individual fingerprint expert decides it to be. But this is obviously not
what Kelly and Venegas had in mind.
As Mr. Nawi points out in his Opposition To People’s Motion to Admit DNA test
Results, in the field of DNA testing, the NRC Reports, TWGDAM Guidelines, and DAB
Standards establish what is scientifically acceptable procedure for conducting PCR or other
DNA testing. Compliance with these and other guidelines, including the lab’s own testing
protocols, is accordingly a prerequisite to admissibility of DNA evidence in this or any other
case.
The court in People v. Barney (1992) 8 Cal. App. 4th 798, 812-813 specifically addresses
this question:
The NRC Report concludes there is indeed a need for standardization of laboratory
procedures and proficiency testing (as well as appropriate accreditation of
laboratories) to ensure the quality of DNA laboratory analysis. But the absence of
such safeguards does not mean that DNA analysis is not generally
accepted....Rather, the absence of these safeguards goes to the question whether a
laboratory has complied with generally accepted standards in a given case, or, as
stated in terms, whether the prosecutor has shown that “correct scientific
procedures were utilized in the particular case. (Emphasis added)
See also, People v. Venegas (1998) 18 Cal. 4th at 53,( “lack of compliance by the FBI with
procedures recommended in 1992 by the National Research Council (NRC) for determining
the statistical probability of a random match” renders DNA evidence inadmissible); United
States v. Beasley (8th Cir. 1996) 102 F.3d 1440,1448( “ In every case, of course, the reliability
of the proffered test results may be challenged by showing that a scientifically sound
methodology has been undercut by sloppy handling of the samples, failure to properly train
those performing the testing, failure to follow the appropriate protocols, and the like.”); State v.
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Jackson (Neb. 1998) 255 Neb. 68, 582 N. W. 2d 317, 325(the results of an unspecified STR
procedure should not have been admitted absent a foundation that the lab had followed its own
testing protocols).
Significantly, there are no NRC Reports purporting to vouch for the reliability of
fingerprint evidence or setting forth the correct scientific procedures to follow. The closest
attempt at such standardization are the SWGFAST GUIDELINES,
http://onin.com/twgfast/twgfast.html, which are still in draft form and are in any event not
binding on any agency. Still, if these Guidelines are to be considered “ the minimum necessary
to perform consistent quality examinations” (Preface to Guidelines), then it is clear that the San
Francisco Police Department fingerprint technicians failed to follow correct scientific
procedures.
Most importantly, SWGFAST and the Department’s own policy manual require annual
proficiency testing of fingerprint analysts. It is clear from her testimony, that Ms. Chong is not
even aware of this requirement, let alone in compliance with it. Further, Mr. Nawi has
specifically requested the proficiency testing of Mr. Moses and as of this date no tests have
been forthcoming. It therefore appears that Mr. Moses is also not not in compliance with
SWGFAST or the rules of his own Department.
SWGFAST also requires that each analyst must pass written tests and/or practical
exercises demonstrating knowledge of “Required Objectives”, “Friction Ridge Analysis”,
“Friction Ridge Detection and Preservation”, and “ Documentation of Examination”.
SWGFAST Training to Competency for Latent Print Examiners, Guidelines 1.3, 2, 3, 4. The
Quality Assurance Guidelines require that “a Quality Manual must be maintained”, and that the
Manual must contain documentation of: Methods and Procedure for Latent Print Development,
Evidence Handling Procedures, Proficiency Testing, Equipment Calibration and Maintenance
Logs, Method Validation Records, and Policy and Procedure Manuals for Electronic
Fingerprint Systems.(Guideline 3). Guideline 4 requires that latent lift prints and photographic
83
images must show “significant information about the orientation and/or position of the latent
print on the object through description and/or diagram.Guideline 5 provides that “(e)vidence
must be collected, received, and stored so as to preserve the identity, integrity, condition, and
security of the item”, and that “a clear, well-documented chain of custody must be maintained
from the time that the evidence is collected or receive until it is released.” Guideline 6 provides
that “(p)rocedures must be in place to ensure the accuracy and completeness of documentation”
and that “(d)ocumentation must be sufficient to ensure that any qualified latent print examiner
could evaluate what was done and replicate any comparisons.”
Although these requirements would appear to be minimal, and although complete
resolution of “prong 3" issues must obviously await the hearing of this motion, it already
appears that Ms. Chong is not in compliance with correct scientific procedures. Most
significantly, she has no documentation of her examination and at least one of the latent prints
has been marked up with a red pen by persons unknown. Further, the latents themselves are not
properly identified as to source. And, as indicated above, the required verification process was
performed in such a way as to bias the results. Finally, and most importantly, the making of an
identification on the basis of 10 or less points of similarity is a failure to follow correct
scientific procedures.
VI
THE GOVERNMENT’S FINGERPRINT IDENTIFICATION EVIDENCE
SHOULD ALSO BE EXCLUDED UNDER EVIDENCE CODE SECTIONS
352 AND 801(A).
In addition to the fact that the government’s fingerprint identification evidence does not
possess sufficient scientific reliability or general acceptance so as to warrant admission under
Evidence Code Section 350 and Kelly, the evidence is also properly excludable pursuant to
Evidence Code Sections 352 and 801(a). Section 352 provides for the exclusion of relevant
evidence “if its probative value is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create substantial danger of undue
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prejudice, of confusing the issues, or of misleading the jury.” Section 801(a) limits the opinion
of an expert witness to that which is “(r)elated to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact...”
As federal and state courts have recognized, rules like Section 352 play an important role
with respect to expert witness testimony, because when it comes to experts, especially
“scientific experts,” jurors may be awed by an “‘aura of special reliability and trustworthiness’
which may cause undue prejudice, confuse the issues or mislead the jury.” Williamson v.
Reynolds, 904 F. Supp. at 1557 (quoting United States v. Amaral, 488 F.2d 1148, 1152 (9th
Cir. 1973). See Daubert, 509 U.S. at 595, 113 S. Ct. at 2798 (“[E]xpert evidence can be both
powerful and quite misleading because of the difficulty of evaluating it.”);People v. Kelly, 17
Cal. 3d at 31(“ lay jurors tend to give considerable weight to ‘scientific’ evidence when
presented by ‘experts’ with impressive credentials. We have acknowedged the existence of a
.... ‘misleading aura of certainty which often envelops a new scientific process, obscuring its
currently experimental nature.’...’[S]cientific proof may in some instances assume the posture
of mystic infallibility in the eyes of the jury.”). See also,People v. Venegas (1998) 18 Cal. 4th
47, 83(The predictable result of expert testimony on DNA statistics is that “the jury would
simply skip to the bottom line-the only aspect of the process that is readily understood-and
look at the ultimate expression of match probability, without competently assessing the
reliability of the process by which the laboratory got to the bottom line. This is an instance in
which the method of scientific proof is so impenetrable that it would ' ... assume a posture of
mystic infallibility in the eyes of a jury ....’"); United States v. Starzecpyzel, 880 F. Supp. at
1048 (“With regard to scientific experts, a major rationale for Frye, and now Daubert, is that
scientific testimony may carry an ‘aura of infallibility.’” (quoting 1 Charles T. McCormick et
al., McCormick on Evidence § 203, at 608-09 (3d ed. 1984));see also John W. Strong,
Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of
Function, Reliability and Form, 71 Or. L. Rev. 349, 361 (1992) (“There is virtual unanimity
85
among courts and commentators that evidence perceived by jurors to be ‘scientific’ in nature
will have particularly persuasive effect.”).
The risk of undue prejudice and confusion is especially great when it comes to latent
fingerprint identifications. With fingerprint evidence having been uncritically accepted by the
American legal system for the past 80 years, see supra at n.20, the general public has come to
firmly believe that fingerprint identifications are scientifically based and that they are
invariably accurate. In a study that was conducted concerning jurors’ attitudes toward
fingerprint evidence, 93% of the 978 jurors questioned expressed the view that fingerprint
identification is a science, and 85% ranked fingerprints as the most reliable means of
identifying a person. Charles Illsley, Juries Fingerprints and the Expert Fingerprint Witness
16, presented at The International Symposium on Latent Prints (FBI Academy, Quantico, VA,
July, 1987) . As demonstrated above, however, these commonly held views are completely
unwarranted. Latent fingerprint identifications are not scientifically supported and there are
substantial questions regarding their reliability. Thus, while the probative value of the
government’s fingerprint evidence is, in reality, low, the danger of undue prejudice is
extremely high, since there is a substantial danger that the jury will give the evidence
considerably more weight than it deserves.
Moreover, as in Venegas,
to ... leave it to jurors to assess the current scientific debate on (fingerprint
evidence) as a matter of weight rather than admissibility, would stand Kelly-Frye on
its head. We would be asking jurors to do what judges carefully avoid-decide the
substantive merits of competing scientific opinion as to the reliability of a novel
method of scientific proof.... The result would be predictable. The jury would
simply skip to the bottom line-the only aspect of the process that is readily
understood-and look at the ultimate expression of (an absolute opinion), without
competently assessing the reliability of the process by which the laboratory got to
the bottom line. This is an instance in which the method of scientific proof is so
impenetrable that it would ' ... assume a posture of mystic infallibility in the eyes of
a jury ...." (18 Cal 4th at 83)
The government’s fingerprint evidence, therefore, is properly excludable not only under
Federal Rule of Evidence 350 and Kelly, but under Section 352 as well. See United States v.
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Santillan (N.D. Cal. 1999) __F.Supp.__,1999 WL 1201765 at 5 (“[Handwriting comparison]
testimony, when it is buttressed by the fact that it comes from an ‘expert,’ would appear to be
more prejudicial and misleading than probative in the Court's consideration of the application
of Rule 403 of the Federal Rules of Evidence.”); Williamson v. Reynolds, 904 F. Supp. at 1558
(finding that the probative value of hair comparison evidence was substantially outweighed by
its prejudicial effect).
The Venegas case also indicates in dicta that the fingerprint expert’s ultimate opinion of
identity in this case is inadmissibile under Section 801(a). Although the admissibility of
fingerprint testimony was not at issue in Venegas, the Court stated in the course of its
discussion of RFLP-DNA evidence that “DNA evidence is different. Unlike fingerprint, shoe
track, bite mark, or ballistic comparisons, which jurors essentially can see for themselves,
questions concerning whether a laboratory has adopted correct, scientifically accepted
procedures for generating autorads or determining a match depend almost entirely on the
technical interpretations of experts.” Id at 81.(emphasis added) However, as applied to
fingerprint testimony, this reasoning proves too much. For if, in fact, “jurors essentially can see
for themselves” the validity of a fingerprint comparison, then there is no need for the opinion
testimony of an expert in the first place.Such testimony is inadmissible under Section 801 (a)
because it is not “(r)elated to a subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact...” See, United States v. Santillan (N.D. Cal.
1999) __F.Supp.__,1999 WL 1201765 at 5(“(T)he Court should look with special care at the
issue of whether or not proffered expert opinion will ‘assist the trier of fact’ within the
requirements of Rule 702 of the Federal Rules of Evidence. The Court is satisfied that
testimony of a handwriting ‘expert’ as to the specific mechanics and characteristics of
handwriting will add to the general knowledge of lay persons and assist them to make
comparisons of different examples of handwriting. However, the Court questions whether
87
adding the essentially subjective opinion of another person as to how the jury should answer
the question of fact before them is not the type of assistance contemplated by the rule.”).
VII
IF THE COURT ALLOWS THE GOVERNMENT TO PRESENT ITS FINGERPRINT
IDENTIFICATION EVIDENCE, THEN THE EXPERT SHOULD BE BARRED
UNDER EVIDENCE CODE SECTIONS 350, 352, AND 1200 FROM TESTIFYING
THAT THE AFIS COMPUTER MATCHED THE PRINT TO MR. NAWI
At the preliminary hearing, Wendy Chong testified that the Police Department’s
Automated Information Fingerprint System (AFIS) can produce a match depending on how the
data is traced into the computer. (RT 221). She also said that “each time you submit the
fingerprint you get a different candidates list.” (RT 222). She further testified that AFIS was
“just a preliminary screening device.” (RT 225). This testimony is confirmed by other sources.
See,State v. Feldman (1992) 254 N.J.Super. 754,758, 604 A.2d 242(“ Somewhat surprisingly,
if the same latent fingerprints are analyzed a number of times by AFIS, the candidates list of
order of likelihood may change, including the possible addition or deletion of less likely
candidates.”)
In view of this testimony, it is clear that even if the court permits some fingerprint
testimony in this case, the court should not permit any expert to testify concerning the match
made on Mr. Nawi’s prints by the AFIS system. Such testimony is irrelevant and unreliable,
and thus inadmissible under section 350, in light of the fact that the AFIS is only a
“preliminary screening device” which produces a different candidates list each time a
fingerprint is submitted. Indeed, in the Feldman case, it was the State itself that argued that
discovery of AFIS information should be denied because “ The State contends that [AFIS]
information is irrelevant because no evidence will be offered at the trial concerning the use or
operation of AFIS. The evidence which will be produced at the trial will be the expert opinion
of the fingerprint expert from the Sheriff's Office, not the opinion of the AFIS operator or the
AFIS printouts.... The State argues that the AFIS information is not relevant because it is not
part of the identification process.” Id. at 758-759.
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Further, such testimony is inadmissible under section 352 because there is a substantial
probability that the jury will be confused and misled into thinking that a match by a seemingly
infallible computer has some probative value in bolstering the expert’s opinion testimony.Also,
any description of AFIS will necessarily reveal Mr. Nawi’s prior criminal history, a fact which
is of no significance to this case and which would be highly prejudicial.See,People v. Van
Cleave (1929) 208 Cal. 295(conviction reversed because of the erroneous admission of a police
fingerprint card that implied to the jury that the defendant had previously been in police
custody.); State v. Staten 1996 WL 339953 (Ohio App. 10 Dist.)(“Because ... testimony [about
AFIS] raises a reasonable inference defendant had a prior criminal record, the trial court erred
when it overruled defense counsel's motion for a mistrial.”). Finally, such testimony is
inadmissible hearsay under section 1200. See, People v. Smith (1994) 256 Ill.App.3d 610, 628
N.E.2d 1176, 1181 (“The testimony of Mary McCarthy in this case that Lauren Wicevic
verified her fingerprint identification was clearly hearsay. Wicevic's opinion was an out-of-
court statement and it was offered to prove the truth of the matter asserted--that the fingerprint
found at the scene of the crime was left by the defendant.)(admission of hearsay fingerprint
identification was reversible error).
VIII
IF THE COURT ALLOWS THE GOVERNMENT TO PRESENT ITS
FINGERPRINT IDENTIFICATION EVIDENCE, MR. NAWI SHOULD BE
GRANTED FUNDING TO RETAIN AND BE PERMITTED TO CALL
EXPERT WITNESSES TO TESTIFY TO THE LIMITATIONS OF THE
GOVERNMENT’S EVIDENCE.
In the event this Court decides to admit any of the government’s fingerprint evidence,
Mr. Nawi should be permitted to introduce expert witness testimony regarding the limitations
of that evidence. The Third Circuit’s decision in United States v. Velasquez, 64 F.3d 844 (3d
Cir. 1995), is directly on point. In Velasquez, the Third Circuit held that it was reversible error
for the trial court not to allow the defense to call an expert witness who would have testified
about the limitations of the government’s handwriting evidence.
89
As the Third Circuit recognized in Velasquez, the same Daubert factors that “inform the
court’s legal decision to admit evidence under Rule 702 may also influence the fact finder’s
determination as to what weight such evidence, once admitted, should receive.” Id. at 848.
Similar to the case at bar, the defense expert in Velasquez was prepared to testify that
“handwriting analysis is not a valid field of scientific expertise because it lacks standards to
guide experts in the match or non-match of particular handwriting characteristics.”
Id. at 846.
The Third Circuit recognized that the defense expert’s “testimony as a critic of handwriting
analysis would have assisted the jury in evaluating the government’s expert witness.” Id. at
848.
The government in Velasquez, challenged the qualifications of the defendant’s expert on
the ground that he was not trained as a handwriting analyst. The defense expert in Velasquez
was a Seton Hall University Law School Professor who for several years had conducted self-
directed research on the field of handwriting analysis. Id. at 847 n.4. The Third Circuit
rejected the government’s argument that the witness was not sufficiently qualified. Consistent
with its previous holdings, the Court held that the qualifications requirement of Rule 702 “has
been liberally construed,” and that it has “‘eschewed imposing overly rigorous requirements of
expertise.’” Id. at 849 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir.
1994)). Moreover, the Court found that “the mere fact that the [witness] is not an expert in
conducting handwriting analysis . . . does not mean that he is not qualified to offer expert
testimony criticizing the standards in the field.” Id. at 851.
In light of Velasquez, it is difficult to understand how the government can possibly
contend that the defense should not, at the very least, be permitted to call expert witnesses to
testify regarding the myriad of problems with fingerprint analysis which have been detailed
above. Expert testimony regarding the lack of objective standards for such identifications, the
lack of empirical testing that has been conducted, the failure to establish an error rate, the
failure to follow correct scientific procedures and the other Daubert factors discussed above,
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will properly assist the jury in determining what weight the government’s fingerprint evidence
should receive. Velasquez, 64 F.3d at 848.See also, People v. Farmer (1989) 47 Cal. 3d 888,
913(Careless testing procedures can be attacked on cross-examination or by other expertt
testimony); People v. Smith (1989) 215 Cal. App. 19, 28 (“Appellant had full opportunity to
cross-examine criminialist Keel’s qualifications and methods, and to present whatever
evidence he desired challenging them.”)
Of course, the abstract right to present opposing expert testimony is meaningless to an
indigent defendant such as Mr. Nawi unless he has the funds to hire such experts.It cannot be
doubted that the right to counsel guaranteed by both the federal and state constitutions
includes, and indeed presumes, the right to effective assistance of counsel, and that the public
duty to implement that right "is not discharged by an assigment . . . under such circumstances
as to preclude the giving of effective aid in the preparation and trial of the case."
(Powell v. Alabama [1932] 287 U.S. 45, 71.) Five decades after Powell, the courts have
implemented that right in very concrete fashion. For instance, the United States Supreme
Court in Ake v. Oklahoma (1985) 470 U.S. 68, 84 L.Ed.2d 53, held that an indigent, upon a
proper showing, must be granted access to consultation and expert testimony of a psychiatrist;
in so holding, the court set out the broader principle that:
mere access to the courthouse doors does not by itself assure a proper functioning of the
adversary process and that a criminal trial is fundamentally unfair if the State proceeds
against an indigent defendant without making certain that he has access to the raw
materials integral to the building of an effective defense. (84 L.Ed.2d at 62.)
This same principle has been vigorously implemented in California, both by the
Legislature (Evidence Code Sections 730-731; Penal Code Sections 987-987.9) and by the
courts
(see, e.g., Corenevsky v. Superior Court [1984] 36 Cal.3d 307 [authorizing funds for law clerk
and jury selection expert]; Keenan v. Superior Court [1982] 31 Cal.3d 424 [authorizing funds
91
for second counsel]; Taylor v. Superior Court [1985] 168 Cal.App.3d 1217 [abuse of discretion
not to appoint fingerprint expert]; People v. Gunnerson [1977] 74 Cal.App.3d 370, 379 [abuse
of discretion not to appoint a cardiologist]; In re Hwamei [1974] 37 Cal.App.3d 554 [reversible
error not to authorize funds for attorney to travel abroad for purposes of investigation]; see
also, Torres v. Municipal Court [1975] 50 Cal.App.3d 778 [funds for confidential experts
required by equal protection analysis]).
In its most important exploration of the right to ancillary defense services, the California
Supreme Court in Corenevsky emphatically declared:
that an indigent defendant has specific statutory rights to certain court- ordered defense
services at county expense; that an indigent defendant has a constitutional right to other
defense services, at county expense, as a necessary corollary of the right to effective
assistance of counsel; that such rights must be enforced, and a court's order directing
payment for such services must be obeyed, even if a county has no specifically
appropriated funds for those purposes. (36 Cal.3d at 313.)
* * *
Additionally, the court emphasized:
A right to ancillary defense services will . . . arise if (defendant) has demonstrated the
need for such services by reference to 'the general lines of inquiry he wishes to pursue,
being as specific as possible.' Although such motions can be granted only if supported
by a showing that the investigative services are reasonably necessary, it has been
recognized that because of the early stage at which the request typically arises, it will
often be difficult for counsel to demonstrate a clear need for such funds. Therefore, the
trial court should, in appropriate circumstances, 'view with considerable liberality a
motion for such pre-trial assistance.' (36 Cal.3d at 320; emphasis added.)
In Corenevsky, the defendant, represented by the public defender, requested inter alia
funds for the payment of two law clerks. The trial court denied the request, not on the basis of
lack of need, but because the court felt the request related to "staffing problems . . . and that is
92
something that you should be taking up with your public defender and his budget instead of the
court simply saying that in addition to whatever budget you already have the court is going to
expand that budget." (36 Cal.3d at 323.)
The Supreme Court held that this ruling was erroneous because
[T]he record clearly demonstrates that such an attempt through the public defender's
office would have been futile. Moreover, the court's order is suspect because it fails to
address the key issue posed by defendant: whether such ancillary services are
reasonably necessary. (Id. at 323.)
In the present case, as in Corenevsky, the defendant has set out in great detail the basis
for
his request for funding of ancillary defense services. If the court were to allow any fingerprint
evidence in this case, the defense at a minimum would need to call the defense experts relied
upon in United States v. Mitchell, and he would be seeking to elicit testimony along the same
lines as was done in the Daudert hearing in that case, the transcript of which the defense will
lodge with the court. As an offer of proof, the transcript, as supplemented by the scientific
literature reviewed in this memorandum, more than satisfies Corenevsky's requirement that the
defendant need refer to "the general lines of inquiry he wishes to pursue, being as specific as
possible." (36 Cal.3d at 320.) Moreover, although the Public Defender, with the assistance of
the Court, has had the financial wherewithal to fund this extremely complex case up to this
point, because all of the necessary experts reside out of state and will require travel expenses as
well as expert witness any attempt to secure the necessary services through the Public
Defender's office would be "futile" within the meaning of Corenevsky.
Viewing the present motion "with considerable liberality," it should be concluded that
defendant has established his entitlement to county funds to pay the reasonable costs necessary
for the preparation of his defense.
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CONCLUSION
For all of the foregoing reasons, the government’s fingerprint identification evidence
should be precluded. In the alternative, the defense should be granted funds to retain, and
should be permitted to present, expert witness evidence regarding the limitations of the
government’s evidence.
Dated: February 10, 2000
Respectfully submitted,
Michael N. Burt
Deputy Public Defender
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