U.S. v. Havvard, IP00-43-CR-01H/F.

• Decision Date: 05 October 2000
• Docket Number: No. IP00-43-CR-01H/F.,IP00-43-CR-01H/F.
• Parties: UNITED STATES of America, Plaintiff, v. Wade HAVVARD, Defendant.
• Court: U.S. District Court — Southern District of Indiana

117 F.Supp.2d 848

UNITED STATES of America, Plaintiff, v. Wade HAVVARD, Defendant.

No. IP00-43-CR-01H/F.

United States District Court, S.D. Indiana, Indianapolis Division.

October 5, 2000.

Susan H. Dowd, Office of United States Attorney, Indianapolis, IN, for U.S.

William Marsh, Indiana Federal Community Defender, Indianapolis, IN, for Wade Havvard.

ENTRY ON DEFENDANT'S MOTION TO EXCLUDE OPINION TESTIMONY ON FINGERPRINT IDENTIFICATION

HAMILTON, District Judge.

Defendant Wade Havvard was charged with being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). Before trial, Havvard filed a motion in limine seeking to bar the government from offering an expert opinion on whether a latent fingerprint recovered from one of the firearms in question matched Havvard's left index finger. Havvard contends that opinion evidence on latent fingerprint identification does not meet the standards of reliability for admissible expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Before trial, the court held an evidentiary hearing on the motion. The court denied defendant's motion and provided an oral explanation. The court's decision may strike some as comparable to a breathless announcement that the sky is blue and the sun rose in the east yesterday. Nevertheless, Daubert and Kumho Tire invite fresh and critical looks at old habits and beliefs. This entry provides the court's explanation in written form at the government's request because it may be useful to other courts.

I. The Requirements of Daubert and Kumho Tire for Expert Testimony

Daubert and Kumho Tire require district judges to act as "gatekeepers" of expert testimony, to ensure that proffered expert testimony is sufficiently (a) relevant and (b) reliable to justify its submission to the trier of fact. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167; Daubert, 509 U.S. at 589, 113 S.Ct. 2786. In this case there is no issue of relevance. An expert's opinion that Havvard's left index finger was the source of a latent print on a firearm found under a mattress is highly relevant to show that Havvard had possession of that firearm at a relevant time.¹

The issue here is reliability. The gatekeeping requirement is designed "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. In Daubert the Court identified several factors that may be relevant in evaluating the reliability of an expert's method for developing a relevant professional opinion. These include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate of error; whether there are standards controlling the technique's operations; and whether the theory or technique enjoys general acceptance within a relevant scientific or expert community. See Kumho Tire, 526 U.S. at 149-50, 119 S.Ct. 1167, citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786.

In Kumho Tire, the Court explained that the Daubert gatekeeping function applies to all kinds of experts, without drawing distinctions between scientific experts and other types. The Court also explained in Kumho Tire that the Daubert factors on reliability were neither mandatory nor exclusive. Rather, "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." 526 U.S. at 152, 119 S.Ct. 1167.

In this case, Havvard contends in essence that an opinion about whether a given latent fingerprint is from a particular finger is a subjective opinion that is not sufficiently reliable to be admitted. Although the argument may seem improbable, Havvard pointed out that the examiner designated to testify at trial about the fingerprint refused to identify a given standard in terms of the number of "points" or features that must be identical between the latent print and the comparison print before an identification opinion can be given. In addition, when that examiner testified at Havvard's trial, he described his opinion as "subjective."

The refusal to provide a clear standard and the expert's description of his opinion as "subjective" at least raise a fair question about identification opinions under Daubert and Kumho Tire. See Kumho Tire, 526 U.S. at 144-45, 157-58, 119 S.Ct. 1167 (upholding exclusion of opinion about cause of tire failure based on experience and visual inspection, and absence of at least two of four supposed signs of under-inflation where methodology was not shown to be reliable). Havvard argues further that there is no reliable statistical foundation for fingerprint comparisons and no reliable measure of error rates in latent print identification, especially in the absence of a specific standard about the number of points of identity needed to support an opinion as to identification. Havvard thus compares latent fingerprint identification to handwriting analysis or hair fiber comparisons, which also have been challenged in the wake of Daubert.

For decades courts have been allowing persons trained and experienced in latent fingerprint identification to testify about their opinions as to whether a given individual was the source of a latent print. The government suggested in response to Havvard's motion that fingerprint identification is so well-established that the court should not even hold a hearing on the issue, citing United States v. Cooper, 91 F.Supp.2d 79, 82-83 (D.D.C.2000) (rejecting non-specific request for pretrial hearing on government's expert testimony in well-established and generally accepted fields). The government proposed that the court essentially take judicial notice of the reliability of latent print identification and leave any further challenges to cross-examination. Cases prior to Daubert support this approach. See, e.g., People v. Jennings, 252 Ill. 534, 96 N.E. 1077, 1081-82 (1911) (early leading case recognizing validity of fingerprint identification testimony); Piquett v. United States, 81 F.2d 75, 81 (7th Cir.1936) ("This court will take judicial knowledge of the well recognized fact that identification by finger prints is about the surest method known, and that it is in universal use in the detection of criminals."); United States v. Magee, 261 F.2d 609, 612 (7th Cir.1958) ("Obviously there can be no more reliable evidence of the identity of a defendant than his own fingerprints.").

The parties have not called the court's attention to any reported cases rejecting fingerprint identification opinion testimony. From the post-Daubert era, the government has provided the transcript of an oral ruling by Judge Joyner rejecting a similar challenge after a Daubert hearing lasting several days in United States v. Mitchell, 96-407-CR (E.D.Pa. Sept. 13, 1999), and an unpublished report and recommendation by Magistrate Judge Snow in United States v. Alteme, No. 99-8131-CR (S.D. Fla. April 7, 2000), rejecting another similar challenge.

In the wake of Daubert, however, experts in a number of different fields have faced fresh challenges as to whether their opinions are sufficiently reliable to admit into evidence. See, e.g., Williamson v. Reynolds, 904 F.Supp. 1529, 1556, 1558 (E.D.Okla.1995) (excluding hair fiber comparison, but distinguishing fingerprint evidence as more reliable), aff'd, 110 F.3d 1508 (10th Cir.1997), abrogated on other grounds, Ross v. Ward, 165 F.3d 793 (10th Cir.1999); United States v. Starzecpyzel, 880 F.Supp. 1027, 1036-38 (S.D.N.Y.1995) (excluding handwriting analysis).

Although a trial court has some degree of discretion in determining how to evaluate the reliability of expert testimony, it is clear that the court has no discretion as to whether to evaluate reliability. See Kumho Tire, 526 U.S. at 159, 119 S.Ct. 1167 (Scalia, J., concurring) (district court's discretion is not discretion "to abandon the gatekeeping function" or to perform the function inadequately). This court therefore held an evidentiary hearing and has considered the issue in some detail.

II. Identification from Latent Finger prints

Against that legal background, the court turns to the evidence in this case. The only evidence presented in the evidentiary hearing was the testimony of Stephen Meagher, a Latent Print Unit Chief in the Forensic Analysis Section of the FBI's Laboratory Division. Meagher has not examined the latent fingerprint in this case and did not testify at trial. He testified instead about the methods and scientific bases of latent print identification. For a helpful and detailed survey of fingerprints and their forensic uses, see also Moenssens, Starrs, Henderson & Inbau, Scientific Evidence in Civil and Criminal Cases 495-554 (4th ed.1995).

The evidence establishes that the patterns of friction ridges on fingertips, palms, toes, and the soles of the feet are unique and permanent to each individual. The prints are unique as to each finger and toe of each person. In addition, there is a biological, embryological basis for the claim of uniqueness. Friction ridge patterns are affected by genetics, but even twins with identical genes have different fingerprints.

That claim of uniqueness and permanence is a scientific claim in the sense that it can be falsified. Such falsifiability is the hallmark of a scientific claim. See Daubert, 509 U.S. at 593, 113 S.Ct. 2786, citing C. Hempel, Philosophy of Natural Science 49 (1966) ("[T]he statements...