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Monday, March 05, 2012

Scientific Validity of Fingerprint Comparison: New Case and Amicus Brief

Just this morning in my inbox I found an invitation to an ABA Panel on “Forensic Science in the Courts.” Good timing, because I currently have a beautifully teed-up forensic science case in the Ninth Circuit.  To follow up for a moment on yesterday’s post, this is another example of the benefits to our doctrinal teaching that can come from continued practice.  Evidence is one of my big core courses (the other is Crim Pro).  Of course I talk about forensic evidence, but just as an application of Daubert.  It’s not a big part of the class, and couldn’t be, without a longer semester, but working on this case has allowed me to to dig into some of the recent scientific critiques of current forensic techniques and evidentiary claims.   

I’ve just filed the opening brief in the Ninth Circuit; in a nutshell, the question is: What does it really mean when a fingerprint examiner says “I am 100 percent certain that these two prints were made by the same person”?   There’s an amicus brief on behalf of forensic scientists and evidence professors that’s circulating around and that I thought some Prawfs readers might be interested in reading and/or signing. 

Here’s the story:

My client was a legal permanent resident for 15 years.  One day in 2009, coming back in at the airport after visiting family in the Dominican Republic, he triggered an IAFIS hit.  CPB started scanning the prints of all entering LPRs in 2008, and apparently some old print cards from Pennsylvania had recently gotten scanned in.  The system registered similarities between the client’s prints and a those of a cocaine dealer busted in 1991.  The cocaine dealer had a different name, but he was also from the D.R., and had been deported there after serving his time. And, like the client, he was born in 1956.  The client says that in 1991 he had not yet left the D.R. and had never been to the U.S.  (and submitted affidavits from family members to that effect).  And when he did come here, he went straight to Anchorage and stayed there ever since, as his employment and residence records attest.  He says he’s never been to Pennsylvania at all, never used or dealt drugs, and never been in trouble with the law.  He has no record (unless, of course, he’s actually this other guy).
The government’s theory was that the Pennsylvania cocaine dealer went back to the D.R., concocted a new identity, and came back (via Puerto Rico) as a law-abiding Anchorage waiter (he worked in a brew pub there for ten years; I talked to the manager, and everyone there loved him).  My guy paid all his money to a lawyer, but it wasn’t enough for her to come and appear at his removal hearing, so he had to represent himself.   He had his own testimony, his affidavits from the D.R., and documentation establishing continual residence and work history in Anchorage.  The government had the Pennsylvania print card. 

A fingerprint examiner testified that it matched Nelson’s.  The examiner testified that she didn’t remember doing the comparison, but that her personal standard for claiming individuation is 8 observed points.  She conceded on cross (by the client himself) that there were some differences (“maybe a scar, maybe a wrinkle”) but said that she was “100 percent certain” that the cards were from the same individual, and that “studies have shown” that all fingerprints are unique.  She was not asked what studies she had in mind, or whether any baseline has ever been established for degrees of similarity (that is, what the likelihood is that two different people would share 8 points (or 10, or 12, etc.).  Neither the initial analysis nor the verification were blind. 
There are also physical discrepancies between Aramboles and Acosta that were not addressed.  The Pennsylvania records have Aramboles at 5’8, while Nelson is listed as 5’11; with a birthday in 1956 he wasn’t doing any post-1991 growing.  My client was shown the 1991 arrest photo of Aramboles, and said “That doesn’t look like me.”  (The government didn’t introduce any analysis of the photos; to my eye, they’re too low-quality to conclude much.) 
What’s nice about this case is the chance of getting the court to focus its unmuddied attention on the NAS forensics report, the NIST report, the Fingerprint Inquiry, and academic criticisms.  This is not a Daubert case; it’s about weight, not admissibility.  The standard here is clear and convincing evidence, so the only question is the weight of an alleged 8-point match: is that enough, standing on its own, to warrant a finding of identity by clear and convincing evidence?  This is a chance to put the latest critiques of fingerprint evidence squarely in front of the court, in a posture in which it’ll have to be faced head on.

The author of the amicus brief is Simon Cole, the chair of UC-Irvine’s Criminology Department, and counsel for amici is Erwin Chemerinsky.    Below the fold you can find Simon’s description of the amicus brief.   He’s interested in hearing from anyone who teaches evidence law or otherwise has a professional expertise in and opinion on forensic evidence.  If you’re such a person and you think you might want to sign, contact him directly at [email protected]   And of course I’ll be happy to share the opening brief as well.

I am writing to invite you to participate in an Amicus Curiae brief of “Scientists and Scholars of Fingerprint Identification” in the Ninth Circuit Court of Appeals in the case Acosta-Roque v. Holder. The brief concerns fingerprint evidence, and it has been narrowly crafted to appeal to individuals with a broad variety of perspectives on fingerprint evidence. The brief argues for the following simple proposition: that testimony that the prints taken from the Petitioner and prints taken previously from Victor Aromboles “were made by one and the same individual” and that “they’re one and the same to the exclusion of all others,” that the examiner was “100 percent certain” of this conclusion, that “There have been scientific studies” that prove that “No two people have the same fingerprints,” and that finding eight friction ridge characteristics consistent between the two set of prints was sufficient to support this conclusion was groundless, misleading and unjustified.
The Brief is very short and to the point (only around 2000 words), and I urge you to take a look at it.
I was initially reluctant to get involved with this case because it involved a ten-print, not a latent print. However, nothing in the record makes the argument that the individualization is supported because it concerns a ten-print, rather than a latent print. Indeed, the expert witness testified that when 8 ridge details are found in correspondence, individualization claims are warranted.
I think that a narrowly crafted brief has a small chance of persuading the court to make a statement supporting the grounding of forensic expert witness testimony in scientific research. Barring that, the brief can still serve as an important consensus statement on behalf of the scientific community.

If you want to view the full trial record, you can access it at:


 I hope you will consider taking a small amount of your valuable time to read and consider signing this brief. Dean Erwin Chemerinsky of University of California, Irvine School of Law has agreed to serve as counsel of record. The client is represented by Professor Caleb Mason, of Southwestern University of School of Law. The following individuals have already agreed to sign the brief:
Jennifer Mnookin
Robert Epstein
David Siegel
Ralph Haber
Lynn Haber
Carl Cranor
Colin Miller
Norm Garland
Myrna Raeder
Joelle Moreno
Sandy Zabell
David Faigman
William Thompson
Joelle Vuille
Simon Cole


Posted by Caleb Mason on March 5, 2012 at 06:32 PM | Permalink


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Also unable to access link and would love to see Amicus brief.

Posted by: Tim Everett | May 2, 2012 11:30:49 AM

Not able to access trial record from link above. Do you have a copy of the Amicus Brief as well?

Posted by: Brian Orr | Apr 30, 2012 10:46:29 AM

Sounds interesting. Would you mind posting a link to the brief as well? Thanks.

Posted by: Marg | Mar 7, 2012 3:14:56 PM

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