Fingerprint match ruling smudges evidentiary rules

U.S. judge questions science, restricts use

January 22, 2002|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

PHILADELPHIA - As federal authorities prepare for a death penalty trial against the reputed leaders of one of the city's most ruthless drug gangs, their evidence includes the one thing that has been nearly irrefutable in American courts for decades: a fingerprint match.

But what might have been a legal slam dunk is suddenly under intense scrutiny. In a ruling that could become a critical turning point for how evidence is gathered and criminal cases are won or lost, a federal judge presiding over the drug and murder case has become the first judge in the country to question the scientific soundness of fingerprint evidence and to restrict how it can be used in court.

U.S. District Judge Louis H. Pollak did not dispute that fingerprints can serve as a unique identifier, and he said prosecution witnesses could point out similarities between a suspect's prints and the swirls and ridges found at a crime scene. But, noting strict standards for scientific testimony established by the Supreme Court, he blocked witnesses from concluding there was a clear match.

"It's quite astronomical," said James E. Starrs, a law and forensic science professor at George Washington University who is among a growing number of scholars and defense lawyers questioning the science behind fingerprinting. "I think what's so important is the judge has distinguished what is science from what is not."

Pollak's decision affects only the Philadelphia drug trial, scheduled to begin this month. But Starrs and other observers say the lone ruling could have broad implications, in part because of Pollak's stature. The judge is a former dean of the Yale and University of Pennsylvania law schools. Appointed to the bench in 1978, Pollak also served in the 1950s and 1960s as a lawyer and board member of the National Association for the Advancement of Colored People's Legal Defense Fund.

"I don't think you throw out his [ruling] because he's alone," said Simon A. Cole, a visiting scholar at Cornell University and author of Suspect Identities: A History of Fingerprinting and Criminal Identification. "I think it puts the other judges in a more awkward position."

Fingerprint evidence has been courtroom gospel for a century, a crucial tool for prosecutors and defense attorneys to make or break cases. Until this month, no judge had raised substantial concerns about its validity.

But some forensic experts had predicted it was only a matter of time as legal challenges sprang up across the country. The first occurred in 1999, when Robert Epstein, a federal public defender in Philadelphia, argued that the accuracy of gathering fingerprint evidence had never been scientifically tested and that no consistent standards or training existed.

Epstein lost. But his effort spurred similar challenges, all relying on a 1993 Supreme Court decision instructing trial-level judges to play a greater role in determining the reliability of scientific testimony before admitting it at trial.

The justices established what become known as the Daubert guidelines, which hold that an expert witness cannot testify about the scientific certainty of an analysis or technique unless there are clear standards for what constitutes a "match" and whether they had been adequately tested, with a known error rate.

Prosecutors and police investigators say fingerprint evidence stands up to that test.

"Latent print comparisons have been properly used as a reliable means of identification in judicial proceedings for over 100 years," Assistant U.S. Attorney Thomas R. Perricone argued in court filings in the current case before Pollak. "Careful comparisons of latent fingerprints to the fingerprints of known individuals, by properly trained fingerprint analysts have been - and continue to be - an invaluable tool to inculpate the guilty and exculpate the innocent."

Investigators have also found themselves defending other forensic techniques in recent years. Handwriting analysis, hair samples and ballistics testing from firearms have come under scrutiny as scientists question the soundness of how the evidence is evaluated and judged.

In his ruling on fingerprint evidence, Pollak noted the reasoning of a federal judge in Boston who sharply restricted the use of handwriting analysis in a 1999 case.

"There is no data that suggests that handwriting analysts can say, like DNA experts, that this person is `the' author of the document," U.S. District Judge Nancy Gertner of Massachusetts wrote in her decision. "There are no meaningful and accepted validity studies in the field. ... There is no academic field known as handwriting analysis. This is a `field' that has little efficacy outside of a courtroom."

Fingerprinting, though, had appeared to be relatively secure.

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