State v. Langill

• Decision Date: 04 April 2008
• Docket Number: No. 2007–300.,2007–300.
• Citation: 157 N.H. 77,945 A.2d 1
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Richard LANGILL.

157 N.H. 77

945 A.2d 1

The STATE of New Hampshire

v.Richard LANGILL.

No. 2007–300.

Supreme Court of New Hampshire.

Argued: Feb. 13, 2008.

Opinion Issued: April 4, 2008.

Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State.

Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief and orally), for the defendant.

DUGGAN, J.

Pursuant to RSA 606:10 (2001), the State appeals the decision of the Superior Court (Coffey, J.) to exclude expert testimony concerning the identification of a fingerprint of the defendant, Richard Langill. We reverse and remand.

I

The record supports the following relevant facts. On March 25, 2004, the police responded to a report of a burglary at an apartment in Derry. The complainant informed the police that someone had stolen $1,200 from a safe in her bedroom bureau and approximately five dollars in coins from a bottle. On April 1, 2004, the police lifted latent prints from the bureau, bottle, and the top and right side of the safe. They forwarded the prints to the New Hampshire Department of Safety State Police Forensic Laboratory (NHSPFL). In February 2005, Lisa Corson, a level one criminalist in the fingerprint unit of the lab, identified the latent impression from the bureau as the defendant's fingerprint. In May 2005, the defendant was indicted for burglary. See RSA 635:1 (2007).

Before trial, the defendant moved to exclude Corson's testimony identifying the latent fingerprint as belonging to him. He argued: (1) Corson was not qualified to testify as a fingerprint expert; (2) the fingerprint methodology used by the NHSPFL, called ACE–V methodology, is generally unreliable under RSA 516:29–a (2007), New Hampshire Rule of Evidence 702 ( Rule 702 ), Baker Valley Lumber v. Ingersoll–Rand, 148 N.H. 609, 813 A.2d 409 (2002), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; (3) even if ACE–V methodology is generally reliable, Corson did not apply that methodology reliably to his case; and (4) admission of the fingerprint evidence would be unfairly prejudicial under New Hampshire Rule of Evidence 403.

The trial court held a two-day Daubert hearing on the admissibility of Corson's fingerprint testimony. Corson testified as an expert in fingerprint evidence on behalf of the State, while the defendant offered the testimony of James Starrs, an expert in the scientific status of fingerprint comparison, and Steven Ostrowski, a level two criminalist with the NHSPFL. During the hearing, Corson provided the following background information concerning fingerprint identification and ACE–V methodology.

Fingerprints are comprised of patterns of friction ridge skin. Because the friction ridge skin forms during gestation, it is permanent and unique to each individual. A known impression or inked print is obtained from an individual by the controlled application of black ink to the fingers' friction ridge surfaces. The prints are stored on a ten print card that also lists the name and date of birth of the individual to whom the prints belong. A latent print is a chance reproduction of friction ridge skin that is left behind when a fingertip touches an object. The quality and clarity of latent prints varies, with latent prints generally exhibiting greater distortions than inked prints.

Fingerprints are categorized into three levels of increasing friction ridge detail. Level one detail, called ridge flow, consists of three basic patterns: arch, loop, and whorl. Five percent of all fingerprints have an arch pattern, sixty percent have a loop pattern, and thirty-five percent have a whorl pattern. Level one detail also includes focal areas of a print, such as delta regions (triangular shaped areas where fields of ridges have grown in together). An examiner may also use level one detail to orient a latent print; that is, to determine which end is up or down. An examiner cannot individualize a print to a person using only level one detail, but can exclude a person at this level.

Level two details, commonly referred to as Galton points, focus upon characteristics of ridge paths, such as places where ridges end, bifucate, or create dots. They also include observations of the directions of these characteristics and their locations in relation to other identifiable features of the print. Because level two details are unique and permanent to each finger, an examiner can individualize a print to a person at this level. Level three detail observes tiny features or ridge attributes, such as pores on a ridge, and the shape, edge, and width of the ridge itself.

The Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST) establishes guidelines for fingerprint analysis. The NHSPFL has incorporated these guidelines into its standard operating procedures. Pursuant to the SWGFAST guidelines, NHSPFL uses the ACE–V methodology to examine fingerprints. See State v. Connor, 156 N.H. 544, 546, 937 A.2d 928, 929–30 (2007).

The first step in ACE–V methodology—analysis—requires the examiner to scrutinize first the latent print, and then the known impression. The examiner identifies, in order, the level one, level two, and, if possible, level three details of the latent print to determine whether it is suitable for comparison to a known print; that is, whether sufficient quality (clarity) and quantity of detail is present to match the latent print to an individual. If the latent print is not sufficient, the examiner does not analyze a known impression. If the latent print is sufficient, the examiner obtains the inked print and separately identifies its level one, level two, and level three details. When these details are not consistent between both the latent and the known, e.g., if the latent print has whorl patterns, and the known impression has no whorl patterns, the examiner excludes the known print and stops the analysis. If, however, the details are consistent between the prints, the examiner begins step two of the method—comparison.

During the comparison phase, the examiner places the latent and known prints next to each other, and observes the friction ridge detail to determine whether, based upon similarity, sequence and spatial relationship, the details agree between both prints. If the examiner identifies discrepancies between the prints, the examiner determines whether such discrepancies are explainable, e.g., whether a particular distortion in the latent print is consistent throughout the print. When the discrepancies are not explainable, the known impression is excluded and the process stops. Otherwise, the examiner continues to the next step—evaluation.

During this stage, the examiner formulates a conclusion based upon the analysis and comparison of the friction ridge details. The examiner may determine that the latent print and the known impression are from the same source (individualization or identification) or different sources (exclusion), or that the results are inconclusive.

The final step is verification, where another qualified examiner independently verifies the first examiner's conclusion by conducting his or her own analysis, comparison, and evaluation to arrive at his or her own conclusion. Under the SWGFAST guidelines, verification is mandatory only when an examiner makes a positive identification. Thus, when the second examiner repeats the process, the verification is not blind because the second examiner knows that another examiner already made a positive identification.

At the Daubert hearing, Corson testified that she applied the ACE–V methodology to analyzing the latent print lifted from the complainant's bureau. She testified that she examined the latent print before looking at the known print. She identified the latent print as having an arch pattern and determined that it had sufficient quality and quantity of detail for individualization. Using an enlarged picture, she further described specific level two and level three characteristics of the latent and known prints, and demonstrated precisely how she compared the two prints to reach her conclusion that the latent print came from the defendant's finger. Corson testified that, while she did not memorialize these observations in contemporaneous bench notes, she photographed the print to document the presence of details. Corson testified that written notes are unnecessary because an independent qualified examiner may observe the features from the photograph. Finally, Corson explained that her conclusion was verified by Timothy Jackson, a criminalist with twenty years experience and the person in charge of the fingerprint unit.

Starrs testified that, pursuant to NHSPFL's Standard Operating Procedures, which apply to every forensic science laboratory in the NHSPFL, Corson was required to memorialize her observations in contemporaneous bench notes. He opined that Corson's failure to take such notes renders her identification unreliable. Starrs further opined that blind verification in single latent print cases would reduce human errors and misidentifications.

Ostrowski disputed this assertion, explaining that blind verification is not a necessary component of the scientific process, and is instead a quality assurance measure. He testified that, while blind verification may provide greater quality assurance, no studies demonstrate that it diminishes or eliminates erroneous identifications, and no oversight organization, such as SWGFAST, currently requires blind verification. Ostrowski acknowledged, however, that the Federal Bureau of Investigation (FBI) may begin blindly verifying single latent prints, and that SWGFAST had recently submitted a draft proposal recommending blind verification for all single latent print cases.

Ostrowski further testified that "no part of the scientific process ... require[s] contemporaneous note taking of the mental process." He explained that scientists take notes while they are...