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Oxford University Commonwealth Law Journal Volume 12, 2012 - Issue 2
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Original Articles

Fingerprint Comparison Evidence Has Been Under Sustained Attack in the United States of America for the Last Number of Years: Is the Critique with Regard to Reliability Sufficiently Penetrating to Warrant the Exclusion of This Valuable Evidence?

Wium De Villiers BIuris, LLB, LLD, Advocate of the High Court of South Africa, Full Professor in the Department of Procedural Law, University of Pretoria, South Africa.
Pages 317-340 | Published online: 07 May 2015

  • 509 US 579 (1993).
  • The Kelly Frye standard. SeePeople v Kelly (1976) 17 Cal 3d 24 (Supreme Court of California); Frye v United States 54 App DC 46 (1923) (Court of Appeals of District of Columbia).
  • Federal Rules of Evidence, Testimony by Expert Witnesses, 28 United States Code Annotated. At the time of the decision Rule 702 provided that if scientific, technical or other specialised knowledge will assist the trier of fact to understand the evidence, or to determine the 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.
  • Daubert (n 1) 589 and further.
  • ibid 593–94.
  • ibid 593 n 10.
  • National Institute of Justice, ‘NIJ Solicitation: Forensic Friction Ridge (Fingerprint) Examination Validation Studies' (2000) <www.ncjrs.gov/pdffles1/nij/sl000386.pdf> at [II], accessed 5 November 2012.
  • An arm of the United States Department of Justice.
  • NIJ Solicitation (n 7).
  • 526 US 137, 150 (1999).
  • Previously Mitchell had been convicted but his conviction was set aside by the Court of Appeals due to an unrelated reason. See United States v Mitchell 145 F3d 572 (1998) (United States Court of Appeals, Third Circuit).
  • United States v Byron Mitchell 365 F 3d 215 (2004) (United States Court of Appeals, Third Circuit).
  • ibid 234. See also Miami Criminal Lawyer Home, ‘Federal Rules of Evidence: Rule 702' (2011) <www.joffelaw.com/federal-rules/evidence/Rule702.html> accessed 6 November 2012.
  • The quoted text is as it reads after the December 2011 amendment. Only the language changed in 2011 as part of a restyling of the evidence rules to make the text more understandable and to make the terminology and style consistent throughout the rules. See the Committee Notes on the 2011 amendment at the Miami Criminal Lawyer Home website, ibid.
  • United States of America v Raynard Council 777 F Supp 2d 1006, 1007 (2011) (United States District Court, Eastern District of Virginia, Richmond Division). National Research Council, Committee on Identifying the Needs of the Forensic Sciences Community, ‘Strengthening Forensic Science in the United States: A Path Forward' (2009) <http://www.nap.edu/openbook.php?record_id=12589&page=R1> accessed 6 November 2012. Hereafter referred to as ‘the NRC report’ or ‘the report’.
  • The People v Carl E Price 2011 WL 2043957 item 18 (Court of Appeal, Second District, Division 4, California).
  • ibid.
  • NRC report (n 15) at 8.
  • ibid 43.
  • ibid 142.
  • Council (n 15) 1009.
  • See eg United States of America v Robert Abdul Baines 573 F 3d 979, 981 (2009) (United States Court of Appeals, Tenth Circuit); Council (n 15); United States of America v David Brian Stone 2012 WL 219435 (United States District Court, Eastern District of Michigan, Southern Division). See my explanation of the terms ‘latent print’ and ‘known print’ hereunder.
  • See eg Price (n 16) item 18.
  • See eg The People v Michael John Lugo 2009 WL 2025637 item 13 (Court of Appeal, Second District, Division 5, California).
  • Baines (n 22) 982.
  • ibid. From the Latin word lateo, ‘to lie hidden’. See Mitchell (n 12) 220.
  • Baines (n 22) 982
  • The People v Kevin Caradine Jr, not reported, case no A121968, Court of Appeals of California, First District, Division 2, fled 23 February 2012, item III.
  • See eg Lugo (n 24); Baines (n 22); United States of America v Ajmal A Aman 748 F Supp 2d 531 (Va 2010) (United States District Court, East Division, Virginia, Alexandria Division); Council (n 15).
  • Baines (n 22) 983; Aman (n 29) 539.
  • The direction of the friction ridges.
  • Including bifurcations, ridge endings and ridge dots.
  • Baines (n 22) 983; Aman (n 29) 539; Council (n 15) 1008.
  • ibid
  • ibid.
  • Aman (n 29) 539 (Ellis J); Council (n 15) 1008 (Spencer CJ).
  • ibid.
  • ibid.
  • For example ink, blood or sweat.
  • Aman (n 29) 539 (Ellis J); Council (n 15) 1008 (Spencer CJ).
  • ibid.
  • Baines (n 22).
  • ibid 984 (Holloway J).
  • ibid 985 (Holloway J).
  • ibid citing Daubert (n 1) 596 (Blackmun J).
  • Baines (n 22) 990 (Holloway J).
  • ibid.
  • ibid 991 (Holloway J). The government examiner testifed to an error rate of one per every eleven million. This evidence was not challenged.
  • ibid.
  • ibid.
  • ibid 992 (Holloway J).
  • Lugo (n 24).
  • ibid [13] (Turner J).
  • Kelly (n 2).
  • Lugo (n 24) [13] (Turner J).
  • ibid.
  • ibid [15] (Turner J).
  • Price (n 16).
  • ibid [17] (Willhite J).
  • ibid [18] (Willhite J).
  • ibid.
  • Stone (n 22).
  • ibid 716–17 [3] (Roberts J).
  • Mitchell (n 12) 246 (Becker J) citing Kumho Tire (n 10) 152 [5] (Breyer J).
  • 324 F 3d 261 (2003). In Crisp the Court acknowledged the need for further research into fngerprint analysis but explained that it did not follow that the drastic step must be taken to exclude a long accepted and ‘bedrock forensic identifer’, at 270 (King J).
  • ibid 268 (King J) See United States v Cooper, 91 F Supp 2d 79, 82 (2000) (Green J).
  • Stone (n 22) 719 [4] (Roberts J). See United States v George, 363 F 3d 666, 673 (2004) (Bauer J).
  • See eg The People v Daniel Gonzalez (Court of Appeal of the State of California, Fourth District, Division 2, E052000, 22 February 2012).
  • See eg Lugo (n 24); Price (n 16); Gonzalez (n 68).
  • See eg Price (n 16) 18 (Willhite J); Gonzalez (n 68) 5 (Hanscom J).
  • Caradine (n 28) 27 (Kline J).
  • ibid.
  • ibid.
  • Gonzalez (n 68).
  • ibid 6–7 (Hanscom J).
  • ibid.
  • (2002) 28 Cal 4th 107, 160 (Supreme Court of California).
  • Caradine (n 28) item III.
  • ibid.
  • Council (n 15) 1009.
  • See my earlier reference to Dr Mnookin on p 319.
  • Council (n 15) 1012, quoting Baines (n 22) 981, 989.
  • ibid.
  • ibid 1013, quoting United States v Crisp 324 F 3d 261, 268 (4th Cir 2003) (United States Court of Appeals, Fourth Circuit). See also Baines (n 22) 990; Aman (n 29) 539–43.
  • Council (n 15) 1012–13.
  • In the inquisitorial jurisdictions where there is less lay participation in the adjudication process, it is accepted that a professional adjudicator should not be hampered by artifcial rules relating to the exclusion of evidence.
  • Although South Africa is a ‘hybrid’ legal system with origins both in Roman-Dutch law and common law, the South African law of evidence belongs to the common law tradition. This can perhaps be justified by the use of lay assessors in the lower and high courts.
  • They can perhaps be compared to jurors as the assessors are predominantly fnders of fact, and not legal issues.
  • Ruto Flour Mills Ltd v Adelson (1) 1958 (4) SA 235 (T) (Supreme Court of South Africa, Transvaal Provincial Division). See also Mkhize v Lourens 2003 (3) SA 292 (T) (High Court of South Africa, Transvaal Provincial Division).
  • Goliath v Fedgen Insurance Company Ltd 1994 (2) PH F31 (E) 83 (Supreme Court of South Africa, Eastern Cape Division).
  • Facts that have no bearing on the case or that cannot be reconciled with all the other evidence in the case. See S v Mkohle 1990 (1) SACR 95 (A) 100d; S v Mponda 2007 (2) SACR 245 (C) [49].
  • PJ Schwikkard & SE Van der Merwe Principles of Evidence (3rd ed, Juta 2009) 83 and further.
  • Daubert (n 1) 593–94.
  • 1978 (4) SA 523 (N) (Supreme Court of South Africa, Natal Provincial Division).
  • ibid 528.
  • S v Mlimo 2008 (2) SACR 48 (SCA) [14].
  • Schwikkard and Van der Merwe (n 92) 95.
  • Under Fry-Kelly general acceptance in the relevant scientific community allowed admission of the evidence. In terms of Daubert general acceptance in the relevant scientific community is but one of five suggested factors in a non-exhaustive list of factors to be weighed. See n 2.
  • In one survey the FBI polled law enforcement agencies in all ffty states as well as the District of Columbia, Canada and the United Kingdom and found that none of these agencies had ever found two people with the same fingerprints and that none of the agencies had ever matched a latent print with two different people. The FBI conducted the survey for purposes of the Daubert hearing in Mitchell; see Mitchell (n 12) 223–24. See also Baines (n 22) 987.
  • See eg Price (n 16) item II.
  • Caradine (n 28) item III.
  • The study was commissioned by the FBI. The study was also Specifically done for purposes of the Daubert hearing in Mitchell (n 12) 224–26. The study was also referred to by the government examiner and accepted as proof of reliability of fngerprint comparison by the district and Court of Appeals in Baines (n 22) 987.
  • See Elizabeth Montalbano, ‘Lockheed Enhances FBI Fingerprinting System’ (2011) at <http://www.informationweek.com/news/government/security/229401509> accessed on 11 November 2012.
  • Mitchell (n 12) 226; Baines (n 22) 987; Robert Epstein ‘Fingerprints meet Daubert: The Myth of Fingerprint “Science” is Revealed' (2002) 75 California Law Review 605, 630.
  • Epstein (n 104).
  • ibid 631.
  • ibid.
  • ibid 632.
  • Montalbano (n 103).
  • See n 7.
  • Expert Working Group on Human Factors in Latent Print Analysis, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach (US Department of Commerce, National Institute of Standards and Technology 2012). The report was produced by the NIJ in collaboration with the Law Enforcement Standards Office in the US Department of Commerce's National Institute of Standards and Technology.
  • ibid 197. See also Michael J Saks and Jonathan J Koehler, ‘The Individualization Fallacy in Forensic Science Evidence’ (2008) 61(1) Vanderbilt Law Review 199.
  • See Saks and Koehler (n 112); Expert Working Group (n 111) 197.
  • Expert Working Group (n 111) 82–86.
  • See n 15.
  • Sandy L Zabell, ‘Fingerprint Evidence’ (2005) 13 Journal of Law and Policy, 143, 167.
  • David Grieve, the editor of the ‘Journal of Forensic Identification’, described the outcome of the CTS proficiency test among the forensic community as ranging from shock to disbelief. See Wikipedia, ‘Fingerprint’ (2012) at <http://en.wikipedia.org/wiki/Handprint> accessed on 6 November 2012. It may even be argued that under normal circumstances the results would probably be worse. When people know that their performance is monitored it changes their behaviour and performance for the better.
  • See n 13.
  • Thirteen Examiners from nine states.
  • Mitchell (n 12) 231. See also Epstein (n 104) 629.
  • ‘The Fingerprint Report’ (2011) at <www.thefngerprintinquiryscotland.org.uk/inquiry/3127–2.html> ch 42 accessed on 6 November 2012.
  • ibid.
  • See (n 111) ch 10 ‘Summary and Recommendations'.
  • S v Kimimbi [1963] 3 All SA 210 (C) (Cape Provincial Division); S v Nala [1965] 4 All SA 261 (A) (Appellate Division).
  • Lirieka Meintjies-van der Walt, ‘Fingerprint evidence: probing myth and reality' (2006) 19 South African Journal of Criminal Justice 152, 166.
  • ibid. Also see Ian Evett and Ray Williams, ‘A Review of the Sixteen Point Fingerprint Standards in England and Wales' (1996) 46 Journal of Forensic Identifcation 49; The Fingerprint Enquiry Report (n 121) ch 33.
  • R v Buckley [1999] All ER (D) 1521 (England and Wales Court of Appeal, Criminal Division (EWCA Crim)); Evett and Williams (n 126).
  • The study was commissioned by the Association of Chief Police Officers. See ibid.
  • The Fingerprint Inquiry Report (n 121) [32.2].
  • ibid [33.1].
  • Cerita Joubert (ed), Applied Law for Police Officials (2nd edn, Juta 2001).
  • See R v Smith [2011] EWCA Crim 1296.
  • The Fingerprint Inquiry Report (n 121) [36.46].
  • The Fingerprint Inquiry Report (n 121) [36.48]. Two independent experts are only asked to verify the identification in a multiple procedure once the print is deemed to be a ‘complex mark’ for example where the examiners differ in their conclusions, the print is borderline in quality or when the examiner finds anything questionable. It is reasonable to surmise that the majority of prints will not be screened by an independent examiner before it is presented in court. The examiners may in the first place not disagree in their conclusions because of the infuence of an earlier conclusion or the other influences mentioned above. The question whether a print is borderline or anything is questionable may well also be influenced by the necessity or desire to keep bureaucratic requirements to a minimum so as not to drive up costs and negatively impact on the speed of the prosecution. The print may even wrongly be denied independent scrutiny due to incompetence or inexperience.
  • Including the United States of America, the United Kingdom, Israel, the Netherlands and Australia.
  • Itiel Dror and David Charlton ‘Why Experts Make Mistakes' (2006) 56(4) Journal of Forensic Identifcation 600.
  • Itiel Dror, David Charlton and Ailsa Péron (2005) ‘Contextual Information Renders Experts Vulnerable to Making Erroneous Identifications' (2006) 156 Forensic Science International 74.
  • See also Itiel Dror and Simon Cole ‘The Vision in “Blind” Justice: Expert Perception, Judgement, and Visual Cognition in Forensic Pattern Recognition' (2010) 17 Psychonomic Bulletin and Review 161.
  • In HM Advocate v McKie, see The Fingerprint Inquiry Report (n 121).
  • See The Fingerprint Inquiry Report (n 121).
  • R v Smith (n 132).
  • Then known as Detective Constable Cardwell.
  • The Fingerprint Inquiry Report (n 121) ‘Terms of Reference’.
  • ibid, ch 28 read with ‘Key Findings and Recommendations' ch 42 and ‘Recommendations’ ch 43.
  • ibid ch 43, Recommendations 29–32.
  • See for example Emily Pizzale, ‘A Refection on South Africa's Criminal Justice System' (2011) <http://victimempowermentsa.wordpress.com/2011/04/14/14/a-reflection-on-south-africa%e2%80%99s-criminal-justice-system/> accessed on 7 November 2012; Legalbrief Today, ‘Inept interpreters influencing course of justice-judge’ (2012) <www.legalbrief.co.za> accessed on 7 November 2012.
  • There is a considerable lack of necessary skills in the forensic services. See for example Henri849ëtte Geldenhuys, ‘Mystery deaths go unsolved’ (2012) <http://www.iol.co.za/news/crime-courts/mystery-deaths-go-unsolved-1.1326197> accessed on 26 June 2012.
  • See for example the insert ‘Know Your Rights' in the Carte Blanche investigative journalism program on M-Net that was broadcast on 10 June 2012. See also Carte Blanche, ‘Know Your Rights' (2012) <http://beta.mnet.co.za/carteblanche/> accessed on 7 November 2012.
  • See Elsayed Mukhtar v Cal State Univ Hayward 299 F 3d 1053, 1063 (9th Cir 2002) (United States Courtof Appeal, Ninth Circuit).
  • See also The Fingerprint Inquiry Report (n 115) ‘Recommendations’ ch 43; Expert Working Group (n 111) ‘Summary of Recommendations' ch 10.
  • ibid.

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