status of scientific law, they nonetheless bear the imprimatur of a strong general acceptance, not only in the expert community, but in the courts as well.”69 The court went on to say:

[E]ven if we had a more concrete cause for concern as to the reliability of fingerprint identification, the Supreme Court emphasized in Daubert that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. Ultimately, we conclude that while further research into fingerprint analysis would be welcome, “to postpone present in-court utilization of this bedrock forensic identifier pending such research would be to make the best the enemy of the good.”70

Opinions of this sort have drawn sharp criticism:

[M]any fingerprint decisions of recent years … display a remarkable lack of understanding of certain basic principles of the scientific method. Court after court, for example, [has] repeated the statement that fingerprinting met the Daubert testing criterion by virtue of having been tested by the adversarial process over the last one-hundred years. This silly statement is a product of courts’ perception of the incomprehensibility of actually limiting or excluding fingerprint evidence. Such a prospect stilled their critical faculties. It also transformed their admissibility standard into a Daubert-permissive one, at least for that subcategory of expertise.71

This is a telling critique, especially when one compares the judicial decisions that have pursued rigorous scrutiny of DNA typing with the decisions that have applied less stringent standards of review in cases involving fingerprint evidence.

In holding that fingerprint evidence satisfied Daubert’s reliability and relevancy standards for admissibility, the Fourth Circuit’s decision in Crisp noted approvingly that “the Seventh Circuit [in United States v. Havvard, 260 F.3d 597 (7th Cir. 2001)] determined that Daubert’s ‘known error rate’ factor was satisfied because the expert in Havvard had testified that the error rate for fingerprint comparison was ‘essentially zero.’”72 This statement appears to overstate the expert’s testimony in Havvard, and gives fuel to the misconception that the forensic discipline

69

324 F.3d 261, 268 (4th Cir. 2003).

70

Ibid., pp. 269-70 (second alteration in original) (other internal citation omitted).

71

1 Faigman et al., op. cit., supra note 1, § 1:1, p. 4; see also J.J. Koehler. Fingerprint error rates and proficiency tests: What they are and why they matter. 59 HASTINGS L.J. 1077 (2008).

72

324 F.3d at 269 (quoting Havvard, 260 F.3d at 599).



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