Federal Cases

Court Fingers Expert Witness
Fingerprint Testimony

U.S. v. Carlos Ivan Llera Plaza; 179 F. Supp. 2d 492; 2002 U.S. Dist. LEXIS 344 (2002). The state attempted to introduce fingerprint evidence on the basis that fingerprints are unique and permanent and therefore provide the basis for associating a particular fingerprint with a particular individual and for matching latent and rolled prints. The defendants argued that fingerprint evidence failed to satisfy the pre-admission standards set forth in Fed. R. Evid. 702 and Daubert. An extensive hearing was conducted in which the court heard motions calling into question whether fingerprints were both unique and permanent and whether latent or lifted, fragments of prints could be accurately matched to rolled, whole fingerprints. The court heard testimony as to what fingerprints are, the basic premises of fingerprint identification and how fingerprints are identified through various markers.

The state’s expert witness testified that fingerprints are developed during the ninth month of fetal development and articulated many specific factors during that development that influence friction ridges and minutia including “pores” considered to be the elements which characterize individual prints. The state’s expert witness discussed the uniqueness and permanence of fingerprints and following this discussion, the state requested judicial notice on these issues. Prior to making its determination, the defense questioned the state’s witness who indicated his research did not include whether individuals within a given population could potentially share numerous minutia characteristics, thus blurring the “uniqueness” of individual fingerprints.

The court heard testimony regarding the process by which a print examiner compares latent and rolled prints to determine whether the person who left a fragmented print might be identified. The most commonly used process is called “ACE-V” or analysis, comparison, evaluation and verification by which an examiner looks at the unknown, latent print and notes both the anatomical aspects of the print and its clarity. Further, the state presented testimony that the theories and techniques regarding the field of fingerprints has been published and peer reviewed for over 100 years. The court, however, questioned whether these publications had been submitted to the scrutiny of the scientific community and therefore ruled that while examinations conducted under the ACE-V method were generally accepted as reliable by fingerprint examiners, this by itself could not sustain the state’s burden of making the case for the admissibility of fingerprint testimony under Fed. R. Evid. 702 or Daubert.

In its conclusion, the court took notice that fingerprints are unique and permanent and allowed the parties to present expert fingerprint testimony regarding how fingerprints are obtained. The court also allowed the jury to observe magnifications of prints and hear testimony regarding the similarities and differences between a particular latent print and a particular rolled print alleged by the state to be attributable to the same individual. However, the court ruled that an expert witness will not, in the future, be allowed to testify that in the opinion of that witness, a specific latent print is or is not the print of a particular individual, thus negating an expert’s ability to testify that in his opinion, prints lifted from a crime scene conclusively are those of the defendant.

Discovery Abuse Deemed Prosecutorial Misconduct

U.S. v. Roy Shelby Blueford, 279 F.3d 1084 (9th Cir. 2002); 2002 U.S. App. LEXIS (2002). Blueford was observed by an undercover officer conversing with another individual also known to the officer. The officer observed Blueford remove what appeared to be a pistol from his coat, show it to the other individual and toss it behind a fence. Blueford was stopped shortly thereafter and detained and the pistol recovered. It was determined Blueford was a convicted felon and he was arrested. He remained in custody prior to trial. Counsel for the defendant indicated Blueford would be relying on an alibi defense that he had been with several other friends all day and not at the location observed by the officer.

The state believed defendant, while in custody, was attempting to generate an alibi based on the increased frequency of his phone calls to those individuals listed on his alibi notice. The state presented its case against the defendant and rested. After the defendant had begun to present his case, the state, for the first time, presented counsel for the defense with 34 tapes of defendant’s phone calls. Each tape was capable of containing 30 minutes of recorded conversation. These tapes were given to counsel after 8:30 p.m. The state informed counsel that some of these tapes were “unclear.” Ten tapes were unintelligible, however they were not marked as such for counsel. Counsel later testified the state had told her that there were additional tapes that were unintelligible or unclear, however, she was being provided only with those tapes which were intelligible. In the aggregate, the tapes contained a total of two and one-half hours of audible conversation. The next day, counsel objected to the timing of the disclosure of these tapes and filed a motion to dismiss that was denied. The court ruled that statements made by the defendant on the tapes could be excluded, however, the statements by persons with whom the defendant was speaking were not discoverable and these could be used by the state.

The state indicated its intent to use these tapes to impeach defense witnesses. However, at trial, the state did not use the tapes for this purpose. The state did, however, ask the jury to infer, from the increased flurry of phone calls shortly before the commencement of the trial, that the defendant was attempting to generate an alibi with his friends. The defendant was convicted of being a felon in possession of a firearm.

On appeal, counsel for the defense indicated it took her almost 30 hours to review the contents of these tapes. These tapes contained approximately two and one-half hours of audible conversation. However, these parts were not separately marked so that it was not possible to listen only to the intelligible portions. Counsel continued to listen to these tapes after defendant’s conviction, and determined they contained exculpatory statements by Blueford.

Further, counsel argued the state engaged in prosecutorial misconduct by asking the jury to infer that the defendant was “concocting an alibi” even though it knew, in part, that none of the tapes contained the type of statements the jury was being asked to infer and that the tapes did contain exculpatory statements by the defendant extolling a witness to tell the truth.

On appeal, the court concluded the trial prosecutor improperly asked the jury to infer from defendant’s pre-trial pattern of phone calls that the defendant was using the calls to fabricate alibi statements from his witnesses. The court stated that while it was proper for the state to ask the jury to draw inferences from evidence the prosecutor believed in good faith to be true, it was decidedly improper for the state to offer up inferences it knew to be false or have strong reason to doubt. Further, it was error for the prosecutor to fail to acknowledge this error to either the trial or appellate court. The court ruled the prosecutor failed at the underlying trial and thereafter, to “discharge its responsibility fairly, consistent with due process.” Reversed and remanded.