Wednesday, April 26, 2017

A Superficial Opinion on Fingerprints in Missouri Has a Few Interesting Wrinkles

In State v. Hightower, 1/ the Missouri Court of Appeals added to the list of superficial opinions on the admissibility of latent fingerprint matches. In this case, a man pointed a gun at the driver of a car, snatched a purse and an iPad, fired into the air, and escaped. The driver did not see the robber’s face, but a detective lifted two “relatively new and undisturbed” prints from the driver’s window. A latent fingerprint examiner with the St. Louis County Police Department used a state AFIS (automated fingerprint identification system) to arrive the conclusion that the latent prints “were left by Defendant's left middle and ring fingers.” On the basis of this identification, a jury convicted David Hightower of armed robbery, and the trial court sentenced him to serve 18 years in prison.

At a pretrial hearing on general scientific acceptance, Dr. Ralph Haber, a research psychologist and “forensic scientist and expert witness” (resume, at 1) testified for the defendant that (as the state court of appeals put it) “the National Academy [of Science] and the National Institute [of Standards and Technology] have both decried the reliability and accuracy of fingerprint evidence adduced using the ACE-V method.” Apparently, he was referring to the well known 2009 report of the NAS Committee on Identifying the Needs of the Forensic Science Community and the report of the NIST Expert Working Group on Human Factors in Latent Print Analysis (D.H. Kaye ed., 2012). 2/ He also “testified he has been asked to serve on the National Commission [on Forensic Science] committee responsible for developing standards for fingerprint analysis.” 3/ The trial court was more impressed by his admission that “in every hearing he had been involved in to exclude fingerprint evidence the evidence had been deemed admissible, save one case from Maryland.” It denied the defendant’s motion to exclude the evidence.

At trial, Dr. Haber “concluded that a person could not be identified with 100% certainty based on a fingerprint,” but acknowledged on cross-examination that “he had not looked at the actual fingerprints in the present case.” When the prosecutor argued in a closing statement that “other ... experts in latent fingerprint examinations ... could have examined this but were not asked to,” the judge instructed the jury to disregard the statement.

The court of appeals assumed that the comment was improper. In a typical display of judicial unrealism, the appellate court blithely “presume[d] the court's curative instructions to the jury removed any prejudice from the prosecutor's statements.” But was the prosecutor in the wrong in the first place? Although the defense certainly has no obligation to examine fingerprints, I do not think the answer is entirely obvious — particularly when the defense produces an expert who testifies that the identification is wrong or uncertain. Here, Dr. Haber apparently choose not to examine the prints although his resume prominently advertises 120 hours of “fingerprint comparison training.” Of course, the prosecutor's comment referred not just to the testifying defense expert’s work, but to the defendant’s decision not to call on still other examiners. Moreover, the defense theory was not that other examiners would disagree with the state’s expert, but only that the meaning of an agreed-upon match is unclear.

If the meaning of a match is indeed unclear — because the entire process has not been fully validated — then it is hard to see how the evidence is generally accepted in a relevant scientific community. The opinion in Hightower does not respond to that argument. Instead, the court maintained that judges have always found subjective comparisons of fingerprints sufficient to demonstrate singular identity. But very few of these opinions have asked whether the scientific literature evinces general acceptance of the proposition that latent print examiners as a group can reliably and accurately match prints of the quality of the ones in this case. Without that showing, how can general scientific acceptance be said to exist?

Fortunately, there are empirical studies of the process that help address this question. These studies appear in reputable scientific journals. 4/ They should inform rulings on admissibility, and the scientific findings should be used to help convey the degree of certainty in any source conclusions.

Finally, the court made short work of Hightower's argument that the conviction could not rest the fingerprint identification alone, at least not without "additional evidence indicating the fingerprints could have only been impressed at the time the crime was committed." The court wrote that
This argument is without merit. “[A] fingerprint at the scene of the crime may in and of itself be sufficient to convict.” State v. Bell, 62 S.W.3d 84, 96 (Mo. App. W.D. 2001). The defendant in Bell claimed that a partial palm print found in a place accessible to the public without credible evidence establishing it was left near the time of crime was insufficient evidence to sustain a conviction. Id. The Western District denied his point, stating there “was sufficient evidence to establish that the palm print on the counter was recent and occurred near the time of the crime” because the hotel clerk testified she had cleaned the counter twenty minutes prior to the robbery and no one other than herself and the robber had touched it in between the time of the robbery and the time the police lifted the print. Id. In the present case, Ms. Gillespie testified and her mother echoed that Defendant hit the car window open-palmed and the detective who collected the fingerprints stated they appeared “fresh” and it was his belief that they had been left recently.
At least one law review article has proposed that a single item of circumstantial evidence tying a defendant to a crime should not be sufficient for a conviction. Nevertheless, when the value of the evidence is great enough, a rigid, two-pieces-of-evidence rule seems too strict.

A further problem in Hightower is that it is not clear that a lay witness can discern the age of the fingerprints or that the detective possessed the necessary expertise to do so. What skill or experience did he have in dating prints? Are there any studies to establish that anyone can discern the age of prints just by shining a flashlight on them? Ascertaining how old prints might be from their physical or chemical properties always has eluded forensic science, although a promising technique has been reported. In Hightower, though, it does not appear that the defendant objected to this part of the detective's testimony.

  1. 511 S.W.3d 454 (Mo. App. 2017).
  2. It would be fairer to say that these reports called for research to establish the probabilities of false positive and negative errors in latent print examinations and for the results of comparisons to be presented in ways that recognize the degree of uncertainty in fingerprint identifications.
  3. The Commission never established subcommittee on fingerprint analysis, and Dr. Haber is not listed as a member of any of the Commission’s seven subcommittees.
  4. Some of them are described in this blog.

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