Unfair for courts to admit unreliable evidence

November 10, 2007

One cannot help but feel for Wayne T. Fleming Sr. and his family ("Fingerprint ruling unjust, hurtful to victim's family," Opinion

Commentary, Nov. 6). Their son, husband and brother has been ripped out of their lives through a seemingly random act of violence.

That said, deciding whether partial fingerprint evidence is admissible in court should not be based on emotions.

Indeed, it is precisely the "technical academic musing" of judges and other legal scholars, which Mr. Fleming derides, that must be employed to make this kind of decision.

And after reading Baltimore County Circuit Judge Susan M. Souder's ruling on the use of fingerprint evidence, it seems clear to me that significant doubts exist over whether the methodology behind fingerprinting forensics is reliable ("Judge bars use of fingerprints in murder trial," Oct. 23).

It appears that expert opinions in the field are colored by subjectivity and can be relied upon only to a very limited degree, if at all ("Fingerprint evidence on trial," Oct. 26).

Mr. Fleming suggests that whether those opinions are reliable should be left to the jury.

However, as the basic rules of evidence suggest, courts must be careful as to what is admitted under the rubric of expert testimony.

When a court-approved expert gets up and states an opinion, his or her statements are given significant weight by the jury. This problem is even more acute in the case of fingerprint evidence, which has long been portrayed by popular TV shows as being very cut and dried.

Even if a judge were to clearly explain to a jury at the end of a trial that fingerprint forensics are highly subjective and should be taken with a grain of salt, jurors would be very likely to believe a fingerprint expert who says a particular set of prints belongs to a particular defendant.

If this is the case - and the most qualified people to determine if it is would seem to be judges and other legal scholars - such evidence cannot fairly be admitted.

Mr. Fleming implores us as citizens to do something about this ruling, for although today it is his family that has to cope with its effects, tomorrow it might be ours.

Unfortunately, he does not consider the opposite proposition - that our families might have to cope with the effects of an opposite ruling.

What if I or a loved one were falsely accused of a crime and a fingerprint "expert" places my prints at the scene of a crime?

What recourse would I have?

Such was the recent horror of Brandon Mayfield, an American lawyer who was falsely connected to the Madrid bombings by fingerprint evidence.

I don't claim to be sure that fingerprint forensics does not live up to the admissibility standards of evidence law in Maryland. I am merely a second-year law student studying evidence law for the first time.

I do, however, know that judges and others in our legal system are charged with protecting the innocent and fairly prosecuting the guilty. And that people in positions like Judge Souder's must prevent the introduction of what they perceive as untrustworthy evidence, even if the results of such a ruling are less than ideal.

As the old saying about free speech goes, "I may hate what you're saying, but I'll fight for your right to say it."

Similarly, I may hate that seemingly guilty people get off, but I will fight any attempt to unfairly prosecute them.

Aaron Gavant

Pikesville

The writer is a student at the University of Maryland School of Law and a former intern for Judge Souder's court.

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