Ignoring PCAST’s Explication of Rule 702(d): The Opinions on Fingerprint Evidence in Pitts and Lundi

With the release of an opinion in February and another in July 2018, the District Court for the Eastern District of New York became at least the second federal district court to find that the 2016 report of the President’s Council of Advisors on Science and Technology (PCAST) [1] did not militate in favor of excluding testimony that a defendant is the source of a latent fingerprint. Chief Judge Dora L. Irizarry wrote both opinions.

United States v. Pitts [2]

The first ruling came in United States v. Pitts. The government alleged that Lee Andrew Pitts “entered a branch of Chase Bank ... and handed [the manager at a teller window] a withdrawal slip that had written on it: “‘HAND OVER ALL 100, 50, 20 I HAVE A GUN I WILL SHOOT.’” After the manager repeatedly said that she had no money, the would-be robber fled on foot ... leaving behind the withdrawal slip” with latent fingerprints. A trawl of a fingerprint database — the court does not say which one or how it was conducted — led New York police to arrest Pitts two weeks later.

Facing trial on charges of entering the bank with the intent to rob it, Pitts moved “to preclude the government from introducing expert opinion testimony as to latent fingerprint and handwriting analysis.” The opinion does not specify the exact nature of the expert's fingerprint testimony. Presumably, it would have been an opinion that Pitts is the source of the print on the withdrawal slip. The court merely noted that the government "claims that its fingerprint experts do not intend to testify that fingerprint analysis has a zero or near zero error rate."

Judge Irizarry made short work of Pitts’s contention that such testimony would contravene Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Pitts relied “chiefly on the findings of the PCAST Report, the [2009] NAS Report [3], and several out-of-circuit court decisions that question the reliability of latent fingerprint analysis.” The judge was “not persuaded.” She acknowledged that “[t]he PCAST and NAS Reports [indicate that] error rates are much higher than jurors anticipate” and that “the NAS Report [stated] that “[w]e have reviewed available scientific evidence of the validity of the ACE-V method and found none.” But she was “dismayed that Defendant’s opening brief failed to address an addendum to the PCAST Report.” According to the court,

[The 2017 Addendum] applaud[ed] the work of the friction-ridge discipline” for steps it had taken to confirm the validity and reliability of its methods. ... The PCAST Addendum further concluded that “there was clear empirical evidence” that “latent fingerprint analysis [...] method[ology] met the threshold requirements of ‘scientific validity’ and ‘reliability’ under the Federal Rules of Evidence.”

Actually, the Addendum [4] adds little to the 2016 report. It responds to criticisms from the forensic-science establishment. The assessment of the scientific showing for the admissibility of latent fingerprint identification under Rule 702 is unchanged. The original report stated that “latent fingerprint analysis is a foundationally valid subjective methodology—albeit with a false positive rate that is substantial and is likely to be higher than expected by many jurors based on longstanding claims about the infallibility of fingerprint analysis.” It added that “[i]n reporting results of latent-fingerprint examination, it is important to state the false-positive rates based on properly designed validation studies.” The Addendum does not retreat from or modify these conclusions in any way.

Both the Report and the Addendum reinforce the conclusion that, despite the lack of detailed, objective standards for evaluating the degree of similarity between pairs of prints, experiments have shown that analysts can reach the conclusion that two prints have a common source with good accuracy. But the Report also lists five more conditions that bear on whether a particular analyst has reached the correct conclusion in a given case. It creates the neoteric phrase “validity as applied” for the showing that a procedure has been properly applied in a the case at bar:

Scientific validity as applied, then, requires that an expert: (1) has undergone relevant proficiency testing to test his or her accuracy and reports the results of the proficiency testing; (2) discloses whether he or she documented the features in the latent print in writing before comparing it to the known print; (3) provides a written analysis explaining the selection and comparison of the features; (4) discloses whether, when performing the examination, he or she was aware of any other facts of the case that might influence the conclusion; and (5) verifies that the latent print in the case at hand is similar in quality to the range of latent prints considered in the foundational studies.

The opinion does not discuss whether the court accepts or rejects this five-part test for admitting the proposed testimony. It jumps to the unedifying conclusion that defendant’s “critiques [do not] go to the admissibility of fingerprint analysis, rather than its weight.”

United States v. Lundi [5]

Chief Judge Irizarry returned to the question of admissibility of source attributions form latent prints in United States v. Lundi.  In the middle of thre afternoon of February 20, 2017, three men entered a check cashing and hair salon on Flatbush Avenue in Brooklyn. They forced an employee in a locked glass booth to let them in by pointing a gun at the head of a customer. They made off with approximately $13,000, but one of them had put his hands on top of the glass booth. Police ran an image of the latent prints from the booth through a New York City automated fingerprint identification system (AFIS) database. They decided that those prints came from Steve Lundi. Federal charges followed.

In advance of trial, Lundi moved to exclude the identification. He avoided the Pitts pitfall of arguing that there was no adequate scientific basis for expert latent print source attributions (although the more recent report of an American Association for the Advancement of Science (AAAS) working group would have lent some credence to such a claim [6]). Instead, Lundi “challeng[ed] the application of that [validated] science to the specific examinations conducted in the instant case.” It is impossible to tell from the opinion whether the court was made aware of the PCAST five-part test admissibility under Rule 702(d). Again, citing the unpublished opinion of a federal court in Illinois, Judge Irizarri apparently leapt over this part of the Report to the conclusion that

This Court is not persuaded that Defendant’s challenges go to the admissibility of the government’s fingerprint evidence, rather than to the weight accorded to it. Moreover, as this Court noted in Pitts, fingerprint analysis has long been admitted at trial without a Daubert hearing. ... The Court sees no reason to preclude such evidence here. Accordingly, Defendant’s motion to preclude fingerprint evidence is denied.

Again, it is impossible to tell from the court's cursory and conclusory analysis whether the theory is that an uncontroverted assurance that an expert undertook an “analysis,” a “comparison,” and an “evaluation” and that another expert did a “verification” ipso facto satisfies Rule 702(d).  The judge noted that “the government points to concrete indicators of how the ACE-V method actually was followed by Detective Skelly,” but it would be hard to find a modern fingerprint identification in which there were no indications that the examiner (1) analyzed the latent print (decided that it was of adequate quality to continue), (2) picked out features to compare and compared them, and then (3) evaluated what was seen. If this is all it takes to satisfy the Rule 702(d) requirement that “the expert has reliably applied the principles and methods to the facts of the case,” then the normal burden on the advocate of expert evidence to show that it meets all the rule’s requirements has evaporated into thin air.

Yet, this could be all that the court required. It suggested that all expert evidence is admissible as long as it is reliable in some general sense, writing that “our adversary system provides the necessary tools for challenging reliable, albeit debatable, expert testimony” and “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence” (citing Daubert, 509 U.S. at 596).

The suggestion assumes what is to be proved—that the evidence—“shaky” or unshakeable—is “admissible.” The PCAST Report tried to give meaning to the case-specific reliability prong of Rule 702 (which simply codifies post-Daubert jurisprudence) by spelling out, for highly subjective procedures like ACE-V, what is necessary to demonstrate the legally reliable application in a specific case. Perhaps the “concrete indicators” showed that PCAST’s conditions were satisfied. Perhaps they did not go that far. Perhaps the PCAST conditions are too demanding. Perhaps they are too flaccid. Judge Irizarri does not tell us what she thinks.

After Lundi and Pitts, courts should strive to fill the gap in the analysis of the application of a highly subjective procedure. They should reveal what they think of PCAST’s effort to clarify (or, more candidly, to prescribe) what is required for long-standing methods in forensic science to be admissible under Rule 702(d).

REFERENCES

1. Executive Office of the President, President’s Council of Advisors on Science and Technology, Report to the President: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, Sept. 2016.
2. United States v. Pitts, 16-CR-550 (DLI), 2018 WL 1116550 (E.D.N.Y. Feb. 26, 2018).
3. Comm. on Identifying the Needs of the Forensic Sci. Cmty., Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009).
4. PCAST, An Addendum to the PCAST Report on Forensic Science in Criminal Courts, Jan. 6, 2017.
5. United States v. Lundi, 17-CR-388 (DLI), 2018 WL 3369665 (E.D.N.Y. July 10, 2018).
6. William Thompson, John Black, Anil Jain & Joseph Kadane, Forensic Science Assessments: A Quality and Gap Analysis, Latent Fingerprint Examination (2017).

Index to comments and cases on the PCAST report