2. An Update on Daubert Hearings on Fingerprints IAI 87th International Educational Conference Las Vegas, NV August 4-10, 2002 Stephen Meagher Unit Chief Latent Print Unit III FBI Laboratory

3. The DAUBERT Decision 1) Whether the theory or technique can be and has been tested. 2) Whether the theory or technique has been subjected to peer review and publication, –although the fact of publication, or lack thereof, in a peer-reviewed journal is not a dispositive consideration.

4. The DAUBERT Decision 3) The known or potential rate of error of a particular scientific technique. 4) The degree of which the technique or theory has been generally accepted in the scientific community. 5) The existence and maintenance of standards controlling its operation.

5. FEDERAL RULES OF EVIDENCE RULE 702. Testimony by Experts Post-Daubert and Kumho If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, provided that (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

6. Daubert Hearings on Fingerprints -a brief look back- 1999; U.S. v Mitchell –Daubert Hearing in June, 1999 5 days, 11 witnesses (7 government, 4 defense) –Trial in February, 2000 –Hearing on Brady and new evidence –Sentencing July, 2002 –Notice of appeal

7. Daubert Hearings on Fingerprints -a brief look back- 2000 U.S. v Alteme –2 days, 4 witnesses (3 government, 1 defense) 2000 U.S. v Havvard –1 day, 1 witness 2000 - 2002 –37 additional challenges in many forms –probably more than reported

8. U.S. v. Llera-Plaza Philadelphia, PA –Private attorneys as lead Filed standard motion to exclude fingerprint evidence in 2001. –Federal Public Defenders Office included for hearing stimulus for all challenges Both sides agreed to argue the issue in writing by filing summaries of U.S. v. Mitchell. –No expert witnesses would testify.

9. U.S. v. Llera-Plaza Judge Pollak ruled (January, 2002) to limit fingerprint testimony. –Evidence could be entered, but… –Fingerprint experts could only testify to similarities and/or dissimilarities, but… –could not testify that the prints are a “match.” Is this a Daubert victory? –Yes, but, fingerprint community considers this to be significantly less than a Daubert Hearing victory.

10. U.S. v. Llera-Plaza Government requests Judge to reconsider. –Case went to DOJ, Washington, D.C., for consultation. Judge Pollak agrees to reconsider. New hearing in March, 2002

11. U.S. v. Llera-Plaza Judge Pollak reverses earlier decision, –with interesting comments: judge must review latent prints prior to trial, and [perceived] limitation to only FBI fingerprint experts. Trial in progress.

12. U.S. v. Llera-Plaza Use of U.S. v Mitchell did not address some of the issues raised by Judge Pollak Second hearing had limited testimony –methodology –practitioner error rate Ken Smith Defense witnesses –Bayle, Haber, Arvizu

13. When can it occur? Pre-Trial –Written defense motion setting forth issues. –May or may not have testimony by experts. –If testimony, provide detailed information with supporting documentation. During Trial –Complicates your testimony to know when to give brief and concise answers versus detailed information. –Consideration for Jury yet need to convey adequate and compelling detail.

14. Tactical Change by Defense Unless a case is one of first impression, the defense will not file for a Daubert Hearing, but wait until trial to aggressively challenge the latent print expert. –First, on your knowledge of the scientific basis during your qualifying phase (This is focused towards the Judge primarily, the jury is secondary at this point.) –Next, after you testified to the identification. (This is focused on side-tracking the jury.)

15. Pre-Trial Meeting with the Prosecutor Discuss the “key words” with the prosecutor prior to trial so both of you recognize when the Daubert issues are being raised. –“Tested technique” or “methodology;” “peer review;” “error rate,” “general acceptance” and “standards.”

16. What are the defense tactics? The claim of absolute certainty –no possible or probable conclusions permitted Lack of standards –for the ACE-V methodology individualization, exclusion, inconclusive –maintenance (SWGFAST) –no standard for claiming a latent print “of value”

17. Latent Prints “of value” – A + C = E – A(50%) + C(50%) = E(100%) – A[25% + 25%] + C(50%) = E(100%) – A(25% + 0%) + C(0%) = E(25%) therefore, establishing a predetermined number of points to claim a latent print of value during the analysis phase is non-relevant in a scientific sense.

18. What are the defense tactics? NIJ Solicitation –June 20, 2000 NIJ letter Proficiency testing –1995 CTS test results Lack of testing –statistical probability models –prior studies and 50K study how different are fingerprints how much information do you need to “match” fingerprints

19. Statistics Historically, there have been numerous attempts to determine the statistical probability of two individuals (two fingers) having the same friction ridge arrangement. Most of the studies were limited to level 2 detail, and most did not even use all of the level two details.

20. Statistical Probability Studies “On the Individuality of Fingerprints” by Pankanti, et al

21. Statistical Probability Models “On the Individuality of Fingerprints” by Pankanti, et al Galton, 1892 9.54 x 10 -7 Henry, 1900 3.72 x 10 -9 Balthazard, 1911 5.96 x 10 -8 Bose, 1917 5.96 x 10 -8 Wentworth & Wilder, 1918 4.10 x 10 -21 Pearson, 1930 8.65 x 10 -7 Roxburgh, 1933 3.35 x 10 -18 Cummins & Midlo, 1943 1.32 x 10 -22 Trauring, 1963 2.91 x 10 -9 Osterburg, et al, 1980 3.05 x 10 -15

22. Statistics None of these studies took into account the qualitative aspects of the comparative process. Even with this limitation, most attempts have resulted in a chance of two individuals having even a small portion of a fingerprint to be greater than the population of the world times 10 fingers.

23. Statistical Probability Models “On the Individuality of Fingerprints” by Pankanti, et al Assumptions and limitations Conclusions

24. Statistics Review of Statistical Modeling to Date –No previous model adequately captured complete comparative process –AFIS is a statistical model, but very limited for latent prints –Need to take existing AFIS data and perform statistical analysis

25. Statistics Lockheed Martin Corp., under the direction of the FBI, conducted a 50K vs. 50K fingerprint comparison test. –50,000 left sloped loops, white males only –used IAFIS matcher algorithms to run each fingerprint against the 50K file. –Level 2 detail only

26. Statistics Test 1 –fully recorded fingerprint (known) –2.5 billion comparisons Test 2 –21.7% of fully recorded fingerprint (simulated latent) –2.5 billion comparisons

27. Statistics Conclusions - Test 1 –The probability of a non-mate rolled fingerprint being identical to any particular fingerprint is less than 1/10  (1 followed by 97 zeros) –world’s population = 5.9 billion x 10 fingers = 59 billion fingers –The probability of any two fingerprints being the same is 59/10 , or 1 chance in 10 .

28. Statistics Conclusions - Test 2 –The probability of a minutiae subset of a non-mate fingerprint being identical to a minutiae subset of any particular fingerprint is less than 1/10  for a small number of minutiae (4 level 2 detail), decreasing to less than 1/10  for larger numbers of minutiae (18 level 2 detail). –world’s population = 5.9 billion x 10 fingers = 59 billion fingers –The probability of any two fingerprints being the same is 59/10 , or 1 chance in 10 .

29. Statistics BOTTOM LINE: –Not even taking into consideration all of the level 2 detail and none of level 3 detail the statistical probability of two individuals having the same ridge arrangement remains beyond reasonableness of the entire worlds population times 10 fingers.

30. What are the defense tactics? Methodology v. Practitioner error rate –Lack of testing to determine practitioner error rate One Dissimilarity Doctrine –just make up an explanation to dismiss a dissimilarity

31. What are the defense tactics? Amount of area needed –Fully rolled print vs. partial print 50K study Control of the discipline –law enforcement v. scientific community Dichotomy between “Point Counters” and “Ridgeologists”

32. What are the defense tactics? Literature –published, peer reviewed –what do you rely on, citations 1999 FBI survey –General Acceptance –Uniqueness

33. What are the defense tactics? On the horizon –Is the known exemplar a true and accurate image of the finger? Inked prints live-scan prints –Lights Out

34. What’s next? Daubert Hearings –Las Cruces, NM; Monday, August 12, 2002 –Ft. Worth, TX; Thursday, August 15, 2002 –Pending; Baltimore, MD