of fingerprinting is infallible. The Havvard opinion actually described the expert’s testimony as follows:

[The expert] testified that the error rate for fingerprint comparison is essentially zero. Though conceding that a small margin of error exists because of differences in individual examiners, he opined that this risk is minimized because print identifications are typically confirmed through peer review. [The expert] did acknowledge that fingerprint examiners have not adopted a single standard for determining when a fragmentary latent fingerprint is sufficient to permit a comparison, but he suggested that the unique nature of fingerprints is counterintuitive to the establishment of such a standard and that through experience each examiner develops a comfort level for deciding how much of a fragmentary print is necessary to permit a comparison.73

This description of the expert’s equivocal testimony calls into question any claim that fingerprint evidence is infallible.

The decision in Crisp also pointed out that “[f]ingerprint identification has been admissible as reliable evidence in criminal trials in this country since at least 1911.”74 The court, however, pointed to no studies supporting the reliability of fingerprint evidence. When forensic DNA first appeared, it was sometimes called “DNA fingerprinting” to suggest that it was as reliable as fingerprinting, which was then viewed as the premier identification science and one that consistently produced irrefutable results. During the effort to validate DNA evidence for courtroom use, however, it became apparent that assumptions about fingerprint evidence had been reached without the scientific scrutiny being accorded DNA. When the Supreme Court decided Daubert in 1993, with its emphasis on validation, legal commentators turned their attention to fingerprinting and began questioning whether experts could match and attribute fingerprints with a zero error rate as the FBI expert claimed in Havvard, and whether experts should be allowed to testify and make these claims in the absence of confirmatory studies. As noted above, most of these challenges have thus far failed, but the questions persist.

The 2004 Brandon Mayfield case refueled the debate over fingerprint evidence. The chronology of events in the Mayfield case is as follows:

73

Havvard, 260 F.3d at 599. The Havvard decision is sharply criticized by 1 Faigman et al., op. cit., supra note 1, § 1:30, pp. 86-89.

74

Crisp, 324 F.3d at 266. The decision cites a number of other legal references, including, inter alia: People v. Jennings, 96 N.E. 1077 (1911); J.L. Mnookin. Fingerprint evidence in an age of DNA profiling. 67 BROOK. L. REV. 13 (2001) (discussing history of fingerprint identification evidence).



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