Filed: Apr. 29, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-29-2004 USA v. Mitchell Precedential or Non-Precedential: Precedential Docket No. 02-2859 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Mitchell" (2004). 2004 Decisions. Paper 734. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/734 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-29-2004 USA v. Mitchell Precedential or Non-Precedential: Precedential Docket No. 02-2859 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Mitchell" (2004). 2004 Decisions. Paper 734. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/734 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-29-2004
USA v. Mitchell
Precedential or Non-Precedential: Precedential
Docket No. 02-2859
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"USA v. Mitchell" (2004). 2004 Decisions. Paper 734.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/734
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PRECEDENTIAL Suite 540 West - Curtis Center
Independence Square West
IN THE UNITED STATES COURT OF Philadelphia, Pennsylvania 19106
APPEALS FOR THE THIRD CIRCUIT
____________________ Counsel for Appellant
NO. 02-2859
___________________ PATRICK L. MEEHAN
United States Attorney
UNITED STATES OF AMERICA
LAURIE MAGID
v. Deputy United States Attorney
for Policy and Appeals
BYRON MITCHELL MICHAEL L. LEVY
Assistant United States Attorney
Appellant ROBERT A. ZAUZM ER (Argued)
________________ Assistant United States Attorney
PAUL A. SARMOUSAKI
Assistant United States Attorney
On Appeal from the United States Senior Appellate Counsel
District Court for Eastern District of Pennsylvania
the Eastern District of Pennsylvania Suite 1250
(D.C. No. 96-cr-407-1) 615 Chestnut Street
District Judge: Philadelphia, Pennsylvania 19106
Honorable J. Curtis Joyner
__________________________ Counsel for Appellee
_______________________
Argued September 9, 2003
OPINION
Before: BARRY, BECKER and _______________________
GREENBERG, Circuit Judges.
TABLE OF CONTENTS
(Filed April 29, 2004)
I. Introduction . . . . . . . . . . . . . . . . . . . 3
MAUREEN KEARNEY ROWLEY
Chief Federal Defender
DAVID L. McCOLGIN II. Facts and Procedural History . . . . . 4
Supervising Appellate Attorney
ROBERT EPSTEIN (Argued) A. The Offense and Mitchell’s
Assistant Federal Defender First Trial and Appeal . . . . . . . . 4
Federal Court Division B. Latent Fingerprint Identification
Defender Association of Philadelphia
and the Daubert Hearing . . . . . . 5 Expert Testimony . . . . . . . . . . 24
1. The Field of Latent 1. Testability . . . . . . . . . . . . . 24
Fingerprint Identification . . 5
2. Peer Review . . . . . . . . . . . . 28
2. The Daubert Hearing . . . . . . 7
3. Error Rate . . . . . . . . . . . . . . 29
a. The Government’s
4. Maintenance of
Experts . . . . . . . . . . . . . . 7
Standards . . . . . . . . . . . . . . 32
b. Mitchell’s Experts . . . . 12
5. General Acceptance . . . . . . 32
c. Mitchell’s Exhibits . . . . 15
6. Relationship to
d. The Government’s Established Reliable
Rebuttal Witness . . . . . 15 Techniques . . . . . . . . . . . . 32
3. The District Court’s 7. Degree to Which the
Daubert and Judicial Expert Testifying Is
Notice Rulings . . . . . . . . . . 16 Qualified . . . . . . . . . . . . . . 33
C. Mitchell’s Second Trial . . . . . 17 8. Non-Judicial Uses . . . . . . . 34
1. The Government’s Case . . . 17 D. Application to the Record of
Core Daubert Principles . . . . . 35
2. Mitchell’s Case and
Cross-Examination of the E. Conclusion on the
Government’s Experts . . . . 19 Admissibility of the
Government’s Evidence . . . . . 38
D. Withholding of the NIJ
Solicitation and Mitchell’s
Post-Trial Motion . . . . . . . . . . 20
IV. Admissibility of Mitchell’s
E. This Appeal . . . . . . . . . . . . . . . 21 Expert Testimony . . . . . . . . . . . . . 39
A. Introduction . . . . . . . . . . . . . . 39
III. Admissibility of the B. Velasquez . . . . . . . . . . . . . . . . 39
Government’s Expert
C. The Parties’ Interpretations of
Testimony . . . . . . . . . . . . . . . . . . . 21
the District Court’s Rulings . . 40
A. Standard of Review . . . . . . . . 21
D. Discussion . . . . . . . . . . . . . . . . 43
B. Standard for Admissibility
under Rule 702 . . . . . . . . . . . . 22
V. The District Court’s
C. Application of Daubert
Declaration of Judicial Notice . . . 45
Factors to Government’s
2
A. Appropriateness of Judicial the application of the various Daubert
Notice . . . . . . . . . . . . . . . . . . . 45 factors to the prosecution’s expert
testimony. We conclude that the testimony
B. Harmless Error Analysis . . . . . 47
passes Daubert muster, and that there are
“good grounds,” id. at 590, for its
admission. In a related matter, we must
VI. Withholding of the NIJ
decide whether the District Court properly
Solicitation . . . . . . . . . . . . . . . . . . 48
took judicial notice that “human friction
A. Standard of Review ridges are unique and permanent
and Applicable Law . . . . . . . . 49 throughout the area of the friction ridge
skin, including small friction ridge areas,
B. Discussion . . . . . . . . . . . . . . . . 51
and that . . . human friction ridge skin
arrangements are unique and permanent.”
App. 1472a. We conclude that the District
VII. Admission of Alleged
Court erred in taking judicial notice, but
Prior Consistent Statements . . . . . 53
that the error was harmless.
We also consider Mitchell’s contention
VIII. Conclusion . . . . . . . . . . . . . . . . 55 that the District Court erroneously
excluded from trial significant portions of
his proffered expert testimony on the
APPENDIX: Colloquies with the unre liability of late nt fin gerp rint
District Court Regarding identification. Portions of the colloquies
Admissibility of Mitchell’s between the Court and counsel are less
Proposed Experts. . . . . . . . . . . . . . 55 than pellucid, but we are satisfied that
what the Court really did was to operate on
a three-tier theory of what expert
BECKER, Circuit Judge. testimony was admissible: allowing (1)
specific criticisms and (2) general
I. Introduction
reliability criticisms, but excluding (3)
This appeal by Byron Mitchell from a testimony about whether latent fingerprint
judgment in a criminal case raises identification is a “science.” Within that
important questions concerning the framework, the exclusion of evidence that
admissib ility of latent fingerprint latent fingerprint identification is a science
identification evidence under Fed. R. Evid. was proper under Kumho Tire Co. v.
702. We adjudicate on the basis of a Carmichael, 526 U.S. 137 (1999).
voluminous record developed at a Daubert
The final fingerprint-related issue
hearing, see Daubert v. Merrell Dow
concerns the putative withholding by the
Pharmaceuticals, Inc., 509 U.S. 579
government of a Department of Justice
(1993), and explore in considerable detail
solicitation for research proposals directed
3
at validating the reliability of latent First Trial and Appeal
f i n ge r p r int i d e n t if i c a ti o n . T h is
This case began in 1991 when two
solicitation, Mitchell contends, was not
men with handguns robbed an armored
only improperly and intentionally withheld
car employee of approximately $20,000
by the government in violation of its
as he entered a check cashing agency at
obligations under Brady v. Maryland, 373
29th Street and Girard Avenue in North
U.S. 83 (1963), but would have been
Philadelphia. The robbers then got into a
powerful evidence, not only substantively
beige car driven by a third person,
but also to impeach the government’s
engaging in gunfire with the armored car
expert witnesses who testified that latent
employees as they fled. The beige car,
fingerprint identification was a well-
which had been stolen about an hour
established discipline with a strong and
beforehand, was abandoned by the
well-verified foundation. The District
robbers roughly a mile from the agency.
Court concluded that the solicitation was
The government sought to prove at trial
not material under the “reasonable
that the robbers were William Robinson
probability of a different outcome”
(a/k/a “Bookie”) and Terrence Stewart
standard of Brady and its progeny. We
(a/k/a “T”), and that the getaway driver
agree.
was Mitchell. According to the
The remaining issue on appeal is government, the robbery had a fourth
whether plain error was committed by the participant, Kim Chester, who knew of
admission of testimony that a key the plans, helped case the robbery site,
government witness gave a statement to and assisted the others in spending the
the FBI and testified at a prior proceeding. proceeds of the robbery. Chester
Mitchell characterizes the admission of testified for the prosecution at Mitchell’s
this evidence as improper under the trial as an uncharged accomplice. Both
hearsay rules, Fed. R. Evid. 801, 802. We Robinson and Stewart died before trial,
conclude that testimony about the and thus Mitchell was the sole defendant.
existence of a statement is not itself a
Mitchell was charged with conspiracy
“statement”; that the testimony was not
to commit and commission of Hobbs Act
“offered . . . to prove the truth of the
robbery, 18 U.S.C. § 1951, and use of
matter asserted,” Fed. R. Evid. 801(c), and
and carrying a firearm during a crime of
thus not inadmissible under Fed. R. Evid.
violence, 18 U.S.C. § 924(c). In the first
802; and that, at all events, the plain error
trial, at which Mitchell was convicted of
standard is not met. We will therefore
all counts, the government introduced
affirm the judgment.
into evidence an anonymous note that
had been left in the front seat of the
abandoned beige car, apparently written
II. Facts and Procedural History
by someone who observed the robbers
A. The Offense and Mitchell’s exiting the beige car and getting into a
4
different car. The note read, “Light 1. The Field of Latent
green ZPJ-254. They changed cars; this Fingerprint Identification
is the other car.” On appeal, we held the
Criminals generally do not leave
note to be inadmissible hearsay not
behind full fingerprints on clean, flat
subject to any exception in Fed. R. Evid.
surfaces. Rather, they leave fragments
803. United States v. Mitchell, 145 F.3d
that are often distorted or marred by
572 (3d Cir. 1998). In view of the
artifacts, terms we explain in the
limited other evidence connecting
margin.1 These “latent” prints—from the
Mitchell to the robbery—Chester’s
Latin lateo, “to lie hidden,” because they
testimony was questionable, no robbery
are often not visible to the naked eye
proceeds were ever linked to Mitchell,
until dusted or otherwise revealed— are
and the fingerprints recovered from the
the typical grist for the fingerprint
beige getaway car were identified as
identification expert’s mill. Testimony at
Mitchell’s but in poor condition—we
the Daubert hearing suggested that the
concluded that admission of the
typical latent print is a fraction—perhaps
anonymous note was not harmless error.
1/5th— of the size of a full fingerprint.
Id. at 579-80. Accordingly, we vacated
App. 435a-436a. A “full” fingerprint is
Mitchell’s conviction and remanded for a
familiar to anyone who has been
new trial. Id.
fingerprinted for identification or law
B. Latent Fingerprint Identification enforcement reasons: It is the print made
and the Daubert Hearing by rolling the full surface of the fingertip
onto a fingerprint card or electronic
Prior to the retrial, the District Court
fingerprint capture device. (These prints
conducted a lengthy Daubert hearing on
are, for obvious reasons, also referred to
the admissibility under Fed. R. Evid. 702
as “rolled prints” or “full-rolled prints.”)
of the government’s expert testimony
A full set of full-rolled fingerprints on a
(and Mitchell’s counter-experts) on the
card—as would be taken during a police
identification of fingerprints found on
booking, for example—is known as a
the gear shift lever and driver’s side door
“ten-print card.” Ten-print cards usually
of the beige getaway car. This hearing
also have space at the bottom of the card
was to adjudicate a major attack mounted
by Mitchell on the government’s
fingerprint evidence. As with any expert 1
In the jargon, artifacts are generally
testimony, some background in the field
small amounts of dirt or grease that
and an introduction to the jargon is
masquerade as parts of the ridge
helpful, and so we discuss the field of
impressions seen in a fingerprint, while
latent fingerprint identification in general
distortions are produced by smudging or
before turning to the particulars of the
too much pressure in making the print,
Daubert hearing.
which tends to flatten the ridges on the
finger and obscure their detail.
5
for “flat impressions” or “plain where ridges terminate or bifurcate are
impressions,” where all four fingers of often referred to as “Galton points,”
the hand are pressed at once onto the whose eponym, Sir Francis Galton, first
card without rolling. developed a taxonomy for these points.
The typical human fingerprint has
Rolled prints and latent prints alike
somewhere between 75 and 175 such
are subject to artifacts and distortions,
ridge characteristics. Level 3 detail
though the problems with latent prints
focuses on microscopic variations in the
are more acute because they are smaller,
ridges themselves, such as the slight
and left more carelessly than full-rolled
meanders of the ridges (the “ridge path”)
prints, and are left on surfaces that many
and the locations of sweat pores. This is
other fingers have also touched.
the level of detail most likely to be
Appellant Br. at 10-11. See Andre
obscured by distortions.
Moenssens et al., Scientific Evidence in
Civil and Criminal Cases, § 8.08 at 514 The FBI—the agency that made the
(4th ed. 1995) (“Many latent impressions primary identification in this case—uses
developed at crime scenes are badly an identification method known as ACE-
blurred or smudged, or consist of V, an acronym for “analysis, comparison,
partially superimposed impressions of evaluation, and verification.” The basic
different fingers.”). steps taken by an examiner under this
protocol are first to winnow the field of
Fingerprints are left by the depositing
candidate matching prints by using Level
of oil upon contact between a surface and
1 detail to classify the latent print. Next,
the friction ridges of fingers. The field
the examiner will analyze the latent print
uses the broader term “friction ridge” to
to identify Level 2 detail (i.e., Galton
designate skin surfaces with ridges
points and their spatial relationship to
evolutionarily adapted to produce
one another), along with any Level 3
increased friction (as compared to
detail that can be gleaned from the print.
smooth skin) for gripping. Thus toeprint
The examiner then compares this to the
or handprint analysis is much the same as
Level 2 and Level 3 detail of a candidate
fingerprint analysis. The structure of
full-rolled print (sometimes taken from a
friction ridges is described in the record
database of fingerprints, sometimes taken
before us at three levels of increasing
from a suspect in custody), and evaluates
detail, designated as Level 1, Level 2 and
whether there is sufficient similarity to
Level 3. Level 1 detail is visible with the
declare a match. In the final step, the
naked eye; it is the familiar pattern of
match is independently verified by
loops, arches, and whorls. Level 2 detail
another examiner, though there is some
involves “ridge characteristics”—the
dispute about how truly independent this
patterns of islands, dots, and forks
verification is.
formed by the ridges as they begin and
end and join and divide. The points The standards used by the FBI at the
6
evaluation stage of the ACE-V protocol has the advantage of allowing an
are somewhat less concrete than the examiner to find a match in situations
numerical descriptions found in where an examiner using a strict point-
television police dramas that extol based standard would not find one, this
“twenty-point matches” and the like. An flexibility comes at the price of
n-point match refers to a match between substituting a degree of subjectivity for
an unknown latent print and a known full an objective numerical standard.
print in which the examiner has
2. The Daubert Hearing
identified n corresponding Galton points
in the correct geometry relative to one The District Court held a five-day
another. A number of jurisdictions both hearing pursuant to Daubert v. Merrell
outside the United States and within Dow Pharmaceuticals, Inc., 509 U.S.
seem to rely on a system where a 579 (1993), to rule on the admissibility
minimum number of corresponding of the government’s and M itchell’s
points must be found before a match may proposed expert testimony. The record
be declared, irrespective of Level 3 of this marathon hearing alone comprises
detail. See, e.g., 2 Paul C. Giannelli & nearly one thousand pages of testimony
Edward Imwinkelried, Scientific and a similarly voluminous array of
Evidence § 16-7(A), at 768 (3d ed. 1999) exhibits. The government called six
(“In France, the required number [of witnesses (plus one rebuttal witness), and
points for a match] used most often is 24 Mitchell, four. The District Court found
while the number is 30 in Argentina and all the offered expert witnesses to be
Brazil.”). Such jurisdictions are said to qualified in their respective fields, and
use a “point system.” On the other hand, neither party raises a challenge to the
Canada does not have a minimum point qualifications, as such, of the witnesses.
threshold for identification, and the Rather, both sides’ issues lie with the
United Kingdom recently eliminated a content of the testimony accepted by the
minimum point threshold. See United District Court. We briefly describe the
States v. Llera Plaza, 188 F. Supp. 2d areas of testimony of each of the
549, 569-70 (E.D. Pa. 2002) (quoting witnesses, starting with the government’s
Lord Lester of Herne Hill’s colloquy witnesses.
with Lord Rooker). The alternative
a. The Government’s Experts
approach—which gained favor with the
FBI in the late 1940s, App. 378a— is to Steven Meagher, an FBI special
use a combination of quantity and agent, testified at the hearing about Level
quality: If ridge characteristics are 1, Level 2, and Level 3 detail (as
abundant, then the quality of Level 3 described above), and other aspects of
detail is unimportant; but a paucity of fingerprint identification. With regard to
Galton points can be compensated for by the FBI’s practices, technology, and
high-quality Level 3 detail. While this operations, he testified about the ACE-V
7
protocol; that the FBI does not rely on a cellular bases for the permanence of
minimum “points” standard for matching friction ridge arrangements. Ed German,
fingerprints (and why it does not); and of the United States Army Criminal
about the Automated Fingerprint Investigation Laboratory, testified to the
Identification System (“AFIS”) computer lack of similarity found between
system (which automates some corresponding fingerprints of identical
preliminary aspects of fingerprint twins, a conclusion established by his
matching). Meagher also described a own research on identical twins and
survey (which we discuss, infra) of state confirmed by other studies of identical
fingerprint identification agencies that he twins.
prepared and circulated for the purpose
The government also offered David
of demonstrating that the fingerprint
Ashbaugh, of the Royal Canadian
match in this case was, by wide
Mounted Police, who testified broadly
consensus, correct. He also described an
about the development, comparison, and
experiment (which we also discuss,
identification of friction ridge skin and
infra) designed and run in cooperation
impressions. Like the other government
with the contractor for the FBI’s AFIS
witnesses who were examined on the
computer system, Lockheed Martin, that
matter (viz., Agent German, Agent
would search a portion of the AFIS
Meagher, and Dr. Budowle) he
database for identical fingerprints.
responded that it was his opinion that
Donald Zeisig, of Lockheed Martin, and
friction ridge arrangements were unique
Bruce Budowle, a statistician and
(the “uniqueness proposition”) and
population geneticist with the FBI, were
permanent (the “permanence
also involved in this experiment, and
proposition”), and that positive
both testified at the Daubert hearing.
identifications can be made from
Zeisig also testified in greater detail
fingerprints containing sufficient
about the technical background of the
quantity and quality of ridge detail. Dr.
AFIS computer system.
Babler also opined that friction ridge
The government offered two arrangements are unique and permanent.
witnesses focusing principally on the These propositions were the foundation
biological aspects of fingerprints. Dr. of the government’s argument that latent
William Babler, of Marquette University, fingerprint identification evidence
testified about the prenatal development satisfies Daubert.
of friction ridges, opining that unique
The government conducted two
arrangements of friction ridges develop
experiments in anticipation of the
in the womb within a matter of months
Daubert hearing: (1) a survey of state
after conception. He also testified to the
fingerprint identification agencies asking
medical community’s accepted
them, inter alia, if they could match the
understanding of the anatomical and
latent prints in this case to Mitchell’s ten-
8
print card; and (2) a search for identical Part B of the survey was designed as
fingerprints using data in the AFIS a demonstration of the ACE-V
computer system.2 The specifics of these identification protocol, and it used the
experiments bear on their relevance as latent fingerprints at issue in this case.
expert evidence, and so we describe them Part B offered each agency photographs
in some detail. of the two latent prints and of Mitchell’s
ten-print card. Agencies were asked first
For purposes of this case, Meagher
to attempt to identify the ten-print card
created a survey packet that was sent out
using their own computerized fingerprint
to the principal law enforcement agency
database. It is common practice (for
of each of the fifty states, plus the
efficiency’s sake) to “filter” the database
District of Columbia, Canada’s Royal
in making an identification, by
Canadian Mounted Police, and the
considering only the subset of records
United Kingdom’s Scotland Yard. The
(by race, sex, date of birth, etc.) that are
survey contained three parts: Part A
likely to result in a match. Meagher
involved questions about whether the
requested that agencies not filter their
agency currently accepts fingerprints as a
database for this test, to ensure that the
means to individualize (i.e., make an
prints were compared against the
identification), and about whether the
maximum possible number of print
agency regards fingerprints as unique
records. Of the forty-seven agencies that
and permanent. All fifty-three recipients
responded, the only match that was found
responded in the affirmative to both
was in Pennsylvania, where Mitchell’s
queries. Joint Supp. App. at 56. Part C
ten-print record was already on file.
inquired whether the agencies had ever
found two individuals to have the same In the second segment of Part B,
fingerprint; the response was, agencies were asked to attempt to match
unanimously, no. Part C also revealed the latent prints to their existing records.
that, in the aggregate, the ten-print The only “hits” were made by the two
records of nearly 70 million agencies (Mississippi and South Dakota)
individuals—or about 700 million that inputted the ten-print card supplied
fingerprints—have been examined by Meagher into their system prior to
during the course of the agencies’ running the search (and thus raised the
operations. likelihood of a match). Pennsylvania
was unable to run this search because of
equipment troubles, but represented that
2
We note that these experiments—and, it undoubtedly would have made a match
indeed, much of the expertise marshaled if its system were fully operative.
both by the government and by
The third segment of Part B asked
Mitchell—required resources and
agencies to perform manual comparisons
preparation that are far from typical in
of the latent prints to the ten-print card
federal criminal trials.
9
provided to them. This survey was than M itchell; and in the third segment,
single-blind, i.e., while Meagher knew no agency matched a latent print to any
that the latent prints had been identified finger other than the one to which the
as Mitchell’s, knew that the ten-print FBI had matched the latent print.
card was Mitchell’s, and believed the
The second experiment conducted by
latents could be matched to the ten-print
the government’s experts was known as
card, none of the survey recipients was
the “50/50” experiment. This was an
told any of this. Roughly two thirds of
empirical examination by computer of a
the agencies responded to this portion.
subset of the FBI’s fingerprint records to
Over three quarters of the responding
search for pairs of very similar
agencies matched both prints consistently
fingerprints taken from different sources.
with the FBI’s identification. Of those
Finding such a pair would undermine the
that did not match both prints, half
uniqueness proposition, see supra page
matched only one print consistent with
8, that the government’s other experts
the FBI’s identification, and half
testified was well-established. The
matched neither print. In followup
experiment data set was a set of fifty
communications, the FBI either
thousand prints (out of about 340 million
convinced these non-identifying agencies
in the FBI’s AFIS computer system).
that a match did exist and they so
Rather than select these fifty thousand
acknowledged (though it took the strong
prints at random, the experimenters
suggestion of annotated blown-up
(Agent Meagher, Mr. Zeisig, and Dr.
photographs of the prints), or otherwise
Budowle) took them from the subset of
established reasons for the non-
prints that were from white males and
identification (e.g., the examiner deemed
exhibited a left-sloped whorl pattern at
the quality of the supplied photographs to
Level 1 detail. The experimenters also
be too poor to make an identification,
ensured that multiple prints from the
and would have preferred an original; or
same person were included in the set of
the comparison was performed by an
fifty thousand. The effect of these
inexperienced examiner, and on review,
restrictions was to bias, from the outset,
a senior examiner was able to find a
the prints toward being more similar (and
match).
hence more likely to contain a matching
A critical summary point is that no pair).3
agency ever registered a “false” positive
(i.e., a positive match that contradicted
3
the FBI’s result): In the first segment of An analogy may illustrate this biasing
Part B, no agency matched Mitchell’s effect: Consider a large multicolored pile
ten-print card to someone else’s ten-print of crayons produced by mixing several
card; in the second segment, no agency boxes of crayons. If one chooses a dozen
matched the latent prints to anyone other “dark” crayons at random, one is more
likely to find among those dozen crayons
10
In the first part of the test, a computer the world other than the person who
program—using the same algorithms as deposited the print at approximately one
the FBI’s AFIS computer system uses to in ten to the eighty-sixth power (i.e., 1
match prints—attempted to match each chance in 1 followed by 86 zeroes), a
of the fifty thousand prints against the very low probability indeed.
full set of fifty thousand prints (hence the
Apparently recognizing that analysis
moniker “50/50”). Thus, a total of
of full-rolled prints was not particularly
50,000 x 50,000, or 2.5 billion,
germane to the question of the
comparisons were performed. For each
identification of latent partial prints, the
print, the best match was, by an
government’s witnesses conducted a
enormous margin, itself.4 Based on
second experiment. From each of the
statistical extrapolation from these
fifty thousand prints, they had the
results, the experimenters put the chances
computer create a simulated latent print
of a single full-rolled print matching
(referred to as a “pseudolatent print” or
another full-rolled print from anyone in
simply a “pseudolatent”), as might be
recovered from a crime scene, by taking
a pair of exactly the same color than one only about a fifth of the full-rolled print.5
is to find such a pair if one selects a They then ran a similar fifty thousand-
dozen crayons at random from the pile at by-fifty thousand comparison to see how
large. strongly the pseudolatent prints matched
full prints from which they had not been
4
We note that the comparisons were derived. With one exception which we
run for each print against all 50,000 identify in the margin, each pseudolatent
prints, not against the other 49,999 was a strong match with the full print
prints. Thus, every print was assured of from which it had been derived, by a
having a tautologically perfect match wide margin over any other full print. 6
(i.e., itself) that could serve as a baseline
for statistical comparisons. This was
done to quantify statistically how much 5
The pseudolatents were 21.7% of the
better the perfect match was than all areal size of the full print, a figure which
other comparisons. The cases in which a Meagher determined was the average
print was a strong match for a print other size of a set of actual latent prints that he
than itself were subsequently discovered had previously used for testing.
to be the product of a double-entry in the
6
database (i.e., a set of prints from the Meagher explained that the sole
same person had been entered into the exception was caused by a poorly created
database twice). The experimenters fingerprint card. On the card in question,
testified that the system’s ability to catch the flat impression had strayed out of the
this unintentional duplication bolstered region on the card designated for the flat
their confidence in its capabilities. impression, and had left part of a print in
11
Statistical computations based on this described which agencies adhered to a
experiment put the probability of a latent point system, how many points they
partial print matching the full print of required to make an identification, and
anyone in the world other than the person noted that the agencies that did not find a
who deposited the print at approximately match generally reported that they had
one in ten to the sixteenth power (i.e., 1 found an insufficient number of points of
in 10,000,000,000,000,000), also a very similarity between the latent print and the
low probability. ten-print card. Ms. Peterman also
reported on the varying levels of
b. Mitchell’s Experts
experience and accreditation of the
Mitchell’s first witness at the examiners who performed the
Daubert hearing was Marilyn Peterman, comparisons for the agencies.
an investigator with the Defender
The first of Mitchell’s three major
Association of Philadelphia who took
experts was Dr. David Stoney, the
statements from those fingerprint
director of the McCrone Research
examiners at state agencies who had
Institute in Chicago, a not-for-profit
failed to match the latent prints to
organization engaged in teaching and
Mitchell’s ten-print card in completing
research in the forensic sciences. Dr.
Part B of the FBI’s survey. 7 She
Stoney was, in Mitchell’s counsel’s
words at the Daubert hearing, offered as
the box designated for one of the rolled an expert “with respect to whether a
impressions. Consequently, one of the fingerprint examiner’s conclusion that a
boxes for a rolled print actually latent fingerprint came from a particular
contained a rolled print, plus a fair-sized individual is a scientific determination.”
piece of a flat print of a different finger. App. 763a. The nucleus of Dr. Stoney’s
As a result, the strong match found by opinion is summarized in a portion of his
computer was actually a match between testimony at the hearing:
the pseudolatent print and the stray The determination that a
portion of the flat print. As with the fingerprint examiner . . . makes
database error discovered in the first when comparing a latent
stage of the 50/50 experiment, the fingerprint with a known
experimenters found this mistaken match fingerprint, specifically the
to be evidence of the robustness of their determination that there is
computer system. sufficient basis for an absolute
7 identification, is not a scientific
It appears that, in the interest of
efficiency, the parties consented to
introducing hearsay from the examiners
who completed the FBI Meagher for the government, and
survey—primarily through Agent through M s. Peterman for Mitchell.
12
determination. . . . It is a that it is wrong.” App. 781a.
subjective determination
Dr. Stoney also criticized the 50/50
without objective standards to
experiment. He noted first the
it.
undisputed proposition that two
Now, by “subjective” I mean impressions of the same friction ridges
that it is one that is dependent on will not be identical—artifacts and
the individual’s expertise, distortions will invariably appear.8 In
training, and the consensus of that experiment, see supra page 10 and
their agreement of other note 4, a fingerprint was compared
individuals in the field. By “not against itself and 49,999 other
scientific” I mean that there is not fingerprints taken from the FBI’s
an objective standard that has database. Hence, Dr. Stoney explained,
been tested; nor is there a the simulated task modeled by the 50/50
subjective process that has been experiment was that of matching Print 1
objectively tested. It is the and (the identical) Print 1 of Finger A.
essential feature of a scientific In his submission, the task in real-world
process that there be something to fingerprint identification is one of
test, that when that something is matching Print 1 and Print 2 of Finger A.
tested, the test is capable of Thus, Stoney reasoned, the 50/50
showing it to be false. experiment as executed assessed how
much better a match is found between
App. 765a. Dr. Stoney opined that the
Print 1 and (the identical) Print 1 of
evaluation phase of the ACE-V protocol
Finger A than between Print 1 of Finger
requires the examiner to make a binary
A and Print 1 of Finger B. A more
determination: Either two prints match
meaningful version of the 50/50
sufficiently to make an absolute
experiment, Dr. Stoney explained, would
identification, or they do not. This Dr.
Stoney contrasted to certain other
forensic disciplines in which 8
This point also underpins Dr.
intermediate determinations are
Stoney’s more general criticism of the
expressed in probabilistic terms. Dr.
discipline of latent fingerprint
Stoney further objected to any
identification: Dr. Stoney agreed that
characterization of fingerprint
human friction ridges are unique and
identification as having a “zero error
permanent, including small areas, App.
rate,” explaining that “something with a
914a, but suggested that this alone is
zero error rate cannot be a science . . . .
unhelpful on the question whether prints
[I]f we start out saying fundamentally
are identifiable, because fingerprints are
something can’t be shown to be wrong,
so subject to distortion and the forensic
then it means that we can’t test it. If we
identification process is so flawed, App.
can’t test it, . . . there’s no way to show
917a-920a.
13
have asked how much better a match is opinion as to whether latent fingerprint
found between Print 1 and Print 2 of examination meets the criteria of
Finger A than between Print 1 of Finger science.” App. 813a-814a. Like Dr.
A and Print 1 of Finger B.9 Stoney, Prof. Starrs testified that it was
his opinion that “[the current practice of]
Dr. Stoney further criticized the
fingerprint comparison and analysis is
method used to create the pseudolatent
not predicated on a sound and adequate
prints in the second part of the
scientific basis for purposes of making
experiment. Dr. Stoney explained that it
an individualization to one person from a
was established in the literature that
fragmentary print to the exclusion of all
simple masking, and even computer-
other persons in the world.” App. 828a.
generated blurring, of full prints cannot
adequately simulate real latent partial To support his conclusion, Prof.
prints. Dr. Stoney’s ultimate conclusion Starrs highlighted five aspects of
was that these experimental defects fingerprint examination that in his
rendered the probabilities derived by the opinion were inconsistent with a
government experts meaningless. scientific discipline: (1) claims to
“absolute certainty”; (2) “the failure to
The defense’s second principal expert
carry out controlled empirical-data-
was James Starrs, a professor in the
searching experimentation”; (3) a failure
Department of Forensic Sciences and the
to engage in error-rate analysis; (4) the
law school at George Washington
lack of uniformity, objectivity,
University. Prof. Starrs has had a long
systematization, and standards; (5) “a
career at the intersection of law and
failure to show a due regard to a
forensic science; indeed, an article by
vigorous and uncompromising
Prof. Starrs was cited by the Supreme
skepticism.” App. 828a-829a. In
Court in Daubert. See Daubert, 509 U.S.
elaborating on each of these points, Prof.
at 591 (citing James E. Starrs, Frye v.
Starrs gave illustrations. For example, he
United States Restructured and
briefly described a case of false
Revitalized: A Proposal to Amend
identification; he described some of the
Federal Evidence Rule 702, 26
subtle and non-systematized aspects of
Jurimetrics J. 249, 258 (1986)). Prof.
analyzing Galton points, see supra page
Starrs was offered as an “exert [sic] in
6, and he criticized some aspects of the
forensic science qualified to provide an
training of new fingerprint examiners.
Prof. Starrs also explained that he viewed
the government’s testimony and
9
We note, however, that such an experiments involving full-rolled prints
experiment was beyond the immediate as irrelevant to the question of latent
capability of the government because its partial print identification. However,
database, by design, does not have under cross-examination Prof. Starrs was
multiple prints from the same finger.
14
agnostic on whether the propositions he group, a notable difference, Dr. Cole
challenged as unproven might, in the explained, between fingerprint
end, be scientifically supportable. identification and, say, psychiatric
diagnosis. Dr. Cole also opined that
Mitchell’s final expert at the
fingerprint identification was not
Daubert hearing was Simon Cole, a post-
scientific because, inter alia, the
doctoral fellow at Rutgers University,
fingerprint identification community had
with expertise in “science and technology
not engaged in studies that attempt to
studies with particular expertise
falsify the discipline’s premises; did not
regarding the fingerprint profession.”
engage in anonymous, critical (as
App. 939a. Dr. Cole had no experience
opposed to positive) peer review; and did
in latent print examination. From his
not recognize error rates.
research, Dr. Cole identified four
explanations for the widespread c. Mitchell’s Exhibits
acceptance of fingerprint identification
As part of the Daubert hearing,
evidence: First, from the earliest days of
Mitchell also introduced several hundred
the discipline, fingerprint examiners have
pages of documentary exhibits,
developed an “occupational norm of
principally journal articles and other
unanimity,” i.e., examiners would not
excerpts from the corpus of literature
publicly disagree with one another about
criticizing the practice and theory of
an identification. Second, in terms of the
latent fingerprint identification, authored
way in which the fingerprint examination
by his experts and by others. Also
community handled the instances of
introduced were the results of some
known misidentification, such cases
fingerprint proficiency tests, which
would, Dr. Cole explained, be blamed on
suggested that examiners were prone to
practitioner incompetence or
both false negatives (i.e., declaring a
misconduct.10 Third was a simple lack of
nonidentification where an identification
judicial scrutiny— a sort of snowball
should have been made) and false
effect of string citations to cases and
positives (i.e., making an incorrect
treatises approving fingerprint
identification). App. 3014a, 3063a.
identification evidence. Fourth was a
Finally, the defense introduced a survey
lack of an organized counter-expert
of jurors that found that 93% agreed with
the statement “fingerprint identification
10 is a science” and 85% agreed with the
Dr. Cole noted that both of these first
statement “fingerprints are the most
two explanations were well illustrated by
reliable means of identifying a person.”
the FBI’s survey: Agent Meagher
App. 3047a-3048a.
followed up with each agency until a
match was agreed to, or otherwise d. The Government’s Rebuttal Witness
identified inexperienced examiners as the
To respond to defense testimony
source of nonidentifications.
15
regarding the “occupational norm of specialized knowledge.
unanimity” among fingerprint examiners,
***
the government offered Pat Wertheim, a
fingerprint examiner, as a rebuttal Further, pursuant to this
witness. Wertheim testified that he and Court’s ruling, this Court finds
David Grieve (who was present but did that the government’s fingerprint
not testify) were involved as defense evidence is highly probative and
experts in a case of false identification in substantially outweighs any
the United Kingdom. Based on their danger of unfair prejudice to
examination of the evidence in that defendant.
case—which was both independent of
***
the U.K. authorities and independent of
each other—they testified, in opposition We find that the government’s
to the prosecution’s expert, that the latent expert witness—at this juncture it
print in that case could not be matched to appears it’s Duane Johnson [sic
the defendant. The purpose of this Wilbur Johnson?], an FBI latent
testimony was to counter Dr. Cole’s fingerprint examiner who testified
contentions about the occupational norm first in the previous trial, and
of unanimity within the discipline. those other latent experts that
testified in the Daubert
3. The District Court’s Daubert and
hearing—are capable of testifying
Judicial Notice Rulings
in these proceedings, and in that
Two months after the Daubert regard, I am not going to limit the
hearing concluded, the District Court defense from calling latent
ruled from the bench on the admissibility fingerprint experts to testify as to
of expert testimony at trial. In relevant the ability not to identify or make
part, the Court stated: an identification from the
fingerprints, and I am also going
The matter presently pending
to allow the defense to call any
before the Court is in reference to
latent fingerprint expert who
the defense motion to exclude the
indicates that fingerprints are not
government’s fingerprint
reliable sources of information.
identification evidence, and based
on the Daubert hearing and also Only for that limited purpose
Kumho, this Court denies the and I am going to exclude
defendant’s motion. And evidence as to whether or not
pursuant thereto, this court is not [latent fingerprint identification
going to make a determination as is] scientific, technical, or
to the particular area of scientific whatever. It has no relevance
knowledge and technical or before the jury here. The question
16
is whether or not an called upon, we will instruct the
identification can be made by jury as so.
examination of
App. 1031a (repunctuated for clarity).
fingerprints—latent
The Court so instructed the jury. On
fingerprints.
appeal, Mitchell asserts that it was error
App. 1029a-1031a (repunctuated for for the District Court to take judicial
clarity). notice of these matters.
As we understand the ruling, the C. Mitchell’s Second Trial
District Court held that the government’s
1. The Government’s Case
expert witnesses and M itchell’s expert
witnesses could testify, but with the The case against Mitchell rested on
caveat that the latter could not testify to eleven lay witnesses and two experts.
the question whether latent fingerprint The government’s star witness was
identification is a “science.” This ruling Bookie’s girlfriend, Kim Chester. Ms.
forms at least the baseline of two of Chester testified that she was present
Mitchell’s issues on appeal: the when Bookie and T were planning the
admission of government experts, and robbery, and that she helped Bookie
the restriction of his own experts. The watch the comings and goings of the
Court again discussed the admissibility armored car in the weeks before the
of the defense’s expert witnesses in a robbery. Ms. Chester said that she and T
colloquy with counsel immediately first met Mitchell and his wife at
before jury voir dire, an exchange that Mitchell’s house, where she heard
we will discuss in greater detail, infra Mitchell and T discussing plans for the
Part IV. robbery. Mitchell’s wife, Anita, invoked
her spousal privilege and did not testify.
Immediately following its ruling on
Eileen Lambert, T’s girlfriend at the
the admissibility of expert testimony, the
time, testified that she also witnessed
District Court addressed what would
meetings between T and Mitchell.
become another ground of Mitchell’s
appeal. Again from the bench, the Court Ms. Chester testified that the night
ruled: before the robbery, Mitchell, Bookie, and
T discussed the need to obtain a stolen
This Court will take judicial
car to use in the robbery. She explained
notice that human friction ridges
that the next morning—September
are unique and permanent
12th—Bookie, T, and Mitchell drove her
throughout the area of the friction
to work. She described how M itchell
ridge skin, including small friction
and Bookie were arguing about what car
ridge areas, and further that
to use in the robbery—the car they were
human friction skin arrangements
in was Mitchell’s wife’s car, and he did
are unique and permanent, and if
17
not want to use it in the robbery. Ms. from the driver’s side door handle—that
Chester testified that they dropped her he later identified as matching Mitchell’s
off at her work, and that when she next ten-print card as the right and left
spoke to Bookie, he indicated that they thumbs, respectively.
had gone through with the planned
Mitchell was arrested the afternoon of
robbery. At that time, he had a
September 12th. Special Agent Kevin
substantial amount of cash, some of
Mimm and Special Agent Daniel
which he used to purchase a car and
Murphy, both of the FBI, testified to the
redeem several pieces of jewelry from a
circumstances of the arrest. They
pawn shop.
explained how they had been conducting
Alma Shaw testified about her car surveillance operations in Philadelphia as
being stolen the morning of September a result of a number of armored car
12th. Emanuel Glover and Vernon robberies; Agent Murphy was in charge
Muse, the armored car guards, and Kim of these operations. Agent Mimm
Kover-Jacobs, the check cashing agency testified that while he was engaged in
manager, testified about the robbery covert surveillance of Mitchell and
itself. Messrs. Glover and M use both tailing Mitchell’s car, Mitchell began to
identified Ms. Shaw’s car as the getaway flee; Mimm described how he chased
car; also, a fragment of the getaway car’s Mitchell at high speed for several blocks,
license plate was noted by a bystander, and was ultimately able to stop him.11
Regan Wiggins, and this fragment was Mitchell was arrested, and $1400 in five
consistent with Ms. Shaw’s car’s license and ten dollar bills was recovered from
plate. him. This currency was never identified,
however, as having been part of the
Laura Barnett, a Philadelphia police
armored car delivery.
officer, testified that she recovered Ms.
Shaw’s car shortly after the robbery. It Agent Meagher returned to testify at
was found (with a bullet hole through the trial about many of the matters brought
trunk) a few blocks from the check out by the government at the Daubert
cashing agency. FBI Special Agent hearing. He discussed the embryology of
Donald Halfpenny testified that Ms. friction ridge skin, the fingerprints of
Shaw’s car had been secured by the identical twins, and the biological basis
Philadelphia police at the time he took
control of it. Wilbur Johnson, an FBI
fingerprint examiner whom the Court 11
The anonymous note that was the
qualified as an expert, testified that in
subject of the previous appeal in this case
Ms. Shaw’s car he found, photographed,
was the critical link: That note connected
and preserved two latent
the robbery getaway car to Mitchell’s
fingerprints—one from the gearshift
own car, allowing the FBI to monitor and
knob on the steering column, and one
capture Mitchell so quickly.
18
for the permanence of fingerprints. He to identify one or both of the latent prints
described how latent prints are left and as belonging to M itchell. 12
how they are processed by examiners,
Mitchell also cross-examined the
and the various conclusions that
government’s experts, Agents Johnson
examiners can draw from a comparison
and Meagher. Cross-examination of
of prints. During M eagher’s testimony,
Johnson concentrated on questions about
the government invoked the Court’s
his presentation to the jury of the
promise to take judicial notice of the
fingerprints he matched— Johnson’s
uniqueness of small areas of friction
demonstrative exhibits identified only
ridge skin. The government also read a
nine points of Level 2 similarity between
stipulation detailing some of the results
the latent prints from the car and
of the survey that Meagher testified
Mitchell’s ten-print card, despite
about at the Daubert hearing, and the
Johnson’s and Meagher’s claims of a
prosecutor examined Meagher regarding
greater number of similarities. Through
the agencies that did not make a positive
cross-examining Agent Johnson,
identification of the latent prints.
Mitchell also probed the existence and
Meagher then demonstrated to the jury in
maintenance of minimum-point standards
some detail his use of the ACE-V
and other quality-control measures at the
technique in matching the latent prints to
FBI in particular, and in the discipline
Mitchell’s ten-print card. He stated
more generally. Cross-examination of
definitively that the fingerprints from the
Agent Meagher ranged into more general
beige car matched Mitchell’s ten-print
considerations, most notably the limited
card. Agent Johnson also stated
studies performed specifically to
definitively that he had matched the
establish an error rate for fingerprint
latent prints from the beige car to
identification, and the limited means for
Mitchell’s ten-print card, though he did
detecting errors in particular
not give an in-depth demonstration to the
examinations. Meagher was also cross-
jury as Agent Meagher did.
2. Mitchell’s Case and
12
Cross-Examination of These witnesses (and their states)
the Government’s Experts were: John Otis (Maine); Janice
Williams and Michael McSparrin
The entirety of Mitchell’s case was
(Mississippi); Ralph Turbyfill
the testimony of individuals at state
(Arkansas); Donald Lock (Missouri);
agencies who examined or supervised the
Russell McNatt, Jr. (Delaware);
examination of the latent prints sent by
Raymond York (Idaho); John Artz
Agent M eagher in the survey.
(Nevada); Janice Reeves (Louisiana);
Specifically, Mitchell called thirteen
and Richard Higgins, Edward Pelton,
latent fingerprint experts from nine
Robert McAuley, and James Ruszas
states, all of whom were initially unable
(New York).
19
examined on his highly suggestive of the solicitation . . . admitted . . . [to]
follow-up communications to those state serious shortcomings in fingerprinting as
agencies that did not match Mitchell’s it has been done up to this time.” App.
prints in the survey. 2325a.
D. Withholding of the NIJ Moreover, Mitchell suggested that
Solicitation and Mitchell’s even the government regarded the
Post-Trial Motion solicitation as material. His most
damaging evidence came from Dr.
On February 7, 2000, the jury
Richard Rau of the NIJ, who coordinated
returned a verdict of guilty on all counts.
the drafting of the solicitation. Rau
Mitchell’s May 15, 2000 motion for a
testified to conversations at a September
new trial pursuant to Fed. R. Crim. P. 33
1999 meeting among himself, Donald
was founded on the discovery of a
Kerr (the Assistant Director of the FBI in
research proposal solicitation released by
charge of the FBI crime laboratory),
the National Institute of Justice (an arm
David Boyd (the Deputy Director of the
of the United States Department of
NIJ), and others. Rau claimed that at that
Justice) entitled Forensic Friction Ridge
meeting Kerr and Boyd agreed to
(Fingerprint) Examination Validation
withhold release of the solicitation until
Studies (the “solicitation”). The
the end of Mitchell’s trial. In response to
solicitation sought proposals for research
Dr. Rau’s testimony, the government
studies on “validation of the basis for
called Kerr, Boyd, and the other
friction ridge individualization and
individuals at the meeting to testify that
standardization of comparison criteria.”
Dr. Rau’s account of the delay in
App. 3078a. Creation of the solicitation
releasing the solicitation was incorrect
had been underway before Mitchell’s
and that the delay was caused by
trial, but the solicitation was not released
budgetary issues.
until March 2000—after Mitchell’s trial
had concluded. The District Court denied M itchell’s
motion, reasoning that the solicitation
The District Court held a four-day
was not material for two independently
hearing to take testimony and receive
sufficient reasons: First, the solicitation
exhibits on the creation and import of the
would not have been admissible at trial
solicitation. At that hearing, Mitchell
because attacks on the reliability of latent
established that Agent Meagher (as well
fingerprint identification were not
as some of the government’s other
permitted at trial based on the Court’s
witnesses at the Daubert hearing) had
Daubert ruling; and second, the
been involved in drafting the solicitation.
solicitation was “not meant to set forth
Prof. Starrs testified that he regarded the
the state of the current research” and so
solicitation as “a bolt out of the blue”
its “claimed impeachment value . . .
that suggested to him “that the sponsors
either during the trial or for Daubert
20
purposes is questionable at best.” App. lay witness, Ms. Chester. We will
12a-13a. On appeal, the government address each of these contentions in turn.
disclaims the first ground, but defends
the District Court’s ruling on the second
ground, as well as on alternative grounds III. Admissibility of the
not reached by the District Court. Government’s Expert Testimony
E. This Appeal A. Standard of Review
The District Court had jurisdiction The parties disagree about the
over this case under 18 U.S.C. § 3231. standard of review we should apply in
Mitchell filed a timely appeal from the evaluating the District Court’s decision
final judgment of conviction and to admit the government’s expert
sentence, and we have jurisdiction under testimony. It is well-settled that, as a
28 U.S.C. § 1291. general matter, we review a district
court’s decision to admit expert
On appeal, Mitchell asserts that the
testimony for abuse of discretion. See In
District Court committed five errors.
re TMI Litig., 193 F.3d 613, 666 (3d Cir.
First, he challenges the District Court’s
1999). We exercise plenary review,
ruling following the Daubert hearing that
however, over a district court’s legal
admitted the prosecution’s expert
interpretation of Fed. R. Evid. 702, under
testimony on fingerprint identification.
which the evidence in question was
Second, Mitchell claims that the District
admitted. See id. On this much the
Court erred in precluding his experts
parties agree.
from testifying at trial that fingerprint
identification is not a science, and is Disagreement arises about the
otherwise unreliable. Third, Mitchell standard of review where, as here, the
finds error in the District Court’s District Court made no findings of fact to
decision to take judicial notice of the support its admission of the testimony;
uniqueness of small areas of friction indeed, after the lengthy Daubert
ridge skin. Fourth, Mitchell contends hearing, the District Court elected not to
that the government’s withholding of the make findings of fact or conclusions of
NIJ solicitation, which could have been law (written or oral), and simply ruled
used as impeachment evidence, merited a from the bench. This absence of factual
new trial under Fed. R. Crim. P. 33, or findings, Mitchell contends, requires
that this nondisclosure violated the plenary review. We reject the rule that
government’s obligation under Brady v. Mitchell urges for four reasons. First,
Maryland, 373 U.S. 83 (1963). Fifth, Mitchell has provided no precedent for
Mitchell asserts that the District Court such a heightened standard of review
improperly admitted hearsay in the over a field historically committed to the
testimony of the government’s principal
21
sound discretion of district courts.13 Appeals to assess the matter. See
Second, the exception that Mitchell Ruggero J. Aldisert, The Judicial
proposes would swallow the rule that Process 728-29 (2d ed. 1996) (quoting
district courts’ evidentiary rulings are Maurice Rosenberg, Judicial Discretion
generally reviewed only for abuse of of the Trial Court, Viewed from Above,
discretion. The vast majority of 22 Syracuse L. Rev. 635, 663 (1971)
evidentiary rulings are made on-the-fly (“[P]robably the most pointed and
and without written findings of fact, yet helpful [reason] for bestowing discretion
this Court routinely affords deference to on the trial judge is [that] . . . . he sees
such judgments. Third, Mitchell’s more and senses more [than the Court of
argument misconceives the rationale for Appeals].”)). This case is a good
using a deferential standard of review. example: The District Court assessed
Deferential review is employed not extensive live testimony, while we work
because the court being reviewed labored from a cold record. Fourth, the Supreme
to produce a long opinion— there are Court has in other contexts rejected
lengthy but incorrect opinions just as heightened appellate review of district
there are brief but sagacious ones. court rulings on expert testimony. See
Rather, deferential review is used when Gen. Elec. Co. v. Joiner, 522 U.S. 136
the matter under review was decided by (1997).
someone who is thought to have a better
Thus we reject Mitchell’s proposed
vantage point than we on the Court of
standard of review, and adhere to the
usual precepts of abuse-of-discretion
review over the District Court’s decision
13
The case Mitchell cites in his brief to admit the government’s expert
and relied on at oral argument, United testimony.
States v. Ellis, 121 F.3d 908, 927 (4th
B. Standard for Admissibility
Cir. 1997), is inapposite. Ellis applied
under Rule 702
plenary review not to the admission of
expert testimony, but rather to a claim of The pathmarking Supreme Court
prosecutorial misconduct where the cases interpreting Fed. R. Evid. 702 are
district court had made no findings of Daubert v. Merrell Dow
fact. Apart from the fact that the issue in Pharmaceuticals, Inc., 509 U.S. 579
Ellis has strong Constitutional overtones (1993), and Kumho Tire Co. v.
that the Rule 702 issue in this case lacks, Carmichael,
526 U.S. 137 (1999). The
this Court does not agree with the Fourth version of Rule 702 in effect at the time
Circuit on this point. See United States of the Daubert hearing and the trial
v. Ismaili,
828 F.2d 153, 163 (3d Cir.
1987) (reviewing District Court’s
rejection of a prosecutorial misconduct
claim for abuse of discretion).
22
provided:14 Daubert, 509 U.S. at 589-92. Daubert
was “limited to the scientific context
If scientific, technical, or other
because that [wa]s the nature of the
specialized knowledge will assist
expertise offered [t]here,” id. at 590 n.8,
the trier of fact to understand the
but Kumho Tire extended Daubert’s
evidence or to determine a fact in
“general principles” to all of “the expert
issue, a witness qualified as an
matters described in Rule 702.” Kumho
expert by knowledge, skill,
Tire, 526 U.S. at 149. Thus “technical
experience, training, or education,
knowledge,” under which heading the
may testify thereto in the form of
discipline of latent fingerprint
an opinion or otherwise.
examination and identification seems to
Daubert identified the twin concerns fall, is generally subject to the same
of “reliability” (also described as “good considerations as “scientific” expertise.
grounds”) and “helpfulness” (also
The “general principles” adverted to
described as “fit” or “relevance”) as the
in Kumho Tire comprised not only the
“requirements embodied in Rule 702.” 15
fundamental concerns of reliability and
helpfulness, but also a method for
14
The rule was subsequently amended, assessing reliability. The Daubert Court
effective December 1, 2000, to codify articulated “general observations” to this
aspects of Daubert and its progeny. The end by offering a nonexclusive list of
Advisory Committee’s note five factors that a district court might
accompanying that amendment is a consider in deciding whether to admit
useful consolidation of commentary and evidence under Rule 702. The Advisory
precedent on the version of Rule 702 that Committee summarized these factors:
applies in Mitchell’s case, and so we will The specific factors explicated by
refer to it at points in our opinion. the Daubert Court are (1) whether
15 the expert’s technique or theory
In applying the teachings of Daubert
can be or has been tested—that is,
in In re TMI Litigation, we explained that
whether the expert’s theory can be
Rule 702 was addressed to two issues:
challenged in some objective
first, the qualification of the experts
sense, or whether it is instead
themselves, and second, the reliability
simply a subjective, conclusory
and helpfulness of their testimony. See
approach that cannot reasonably
In re TMI Litig., 193 F.3d at 664 (citing
be assessed for reliability; (2)
In re Paoli R.R. Yard PCB Litig., 35 F.3d
whether the technique or theory
717, 749-50 (3d Cir. 1994) (Paoli II)).
Daubert addresses the latter. As noted
above, the former is not at issue in this
appeal, as the District Court qualified all areas of expertise, and neither party
experts on both sides in their proffered challenges any of these rulings.
23
has been subject to peer Paoli II, 35 F.3d at 742 n.8.
review and publication; (3) the
These factors address only reliability,
known or potential rate of
and not “helpfulness” or “fit.” But the fit
error of the technique or
inquiry in the case of fingerprint
theory when applied; (4) the
identification is not a significant factor,
existence and maintenance of
because identity evidence is the
standards and controls; and (5)
archetypal relevant evidence in criminal
whether the technique or
cases. Thus, the analysis that follows
theory has been generally
only addresses the reliability prong of
accepted in the scientific
Daubert.
community.
C. Application of Daubert Factors
Fed. R. Evid. 702 advisory committee’s
to Government’s Expert Testimony
note.
1. Testability
Citing Kumho Tire, the Advisory
Committee noted that “[o]ther factors We first consider whether the
may also be relevant,” id., and indeed, premises on which fingerprint
courts have augmented this list. In Paoli identification relies are testable— or,
II we drew on Daubert and our earlier better yet, actually tested. “Testability”
decision in United States v. Downing, has also been described as
753 F.2d 1224 (3d Cir. 1985), to lay out “falsifiability.” See, e.g., Daubert, 509
an expanded list of factors: U.S. at 593 (citing Karl R. Popper,
Conjectures and Refutations: The
(1) whether a method consists of a
Growth of Scientific Knowledge 37 (5th
testable hypothesis; (2) whether
ed. 1989)). A proposition is “falsifiable”
the method has been subject to
if it is “capable of being proved false;
peer review; (3) the known or
defeasible.” Webster’s Third New
potential rate of error; (4) the
International Dictionary 820
existence and maintenance of
(unabridged ed. 1966). Proving a
standards controlling the
statement false typically requires
technique’s operation; (5) whether
demonstrating a counterexample
the method is generally accepted;
empirically—for instance, the hypothesis
(6) the relationship of the
“all crows are black” is falsifiable
technique to methods which have
(because an albino crow could be found
been established to be reliable; (7)
tomorrow), but a clairvoyant’s statement
the qualifications of the expert
that he receives messages from dead
witness testifying based on the
relatives is not (because there is no way
methodology; and (8) the
for the departed to deny this).
non-judicial uses to which the
method has been put. In this case, the relevant premises
24
were posed as explicit questions to many on identical twins (testified about by
of the government experts: (1) Are Agent German) showed unique
human friction ridge arrangements fingerprints. While this is a small
unique and permanent? and (2) Can a sample, there are independent and solid
positive identification be made from genetic grounds for believing that if
fingerprints containing sufficient identical friction ridge arrangements are
quantity and quality of detail? The to be found, they are most likely to be
government’s experts responded in the found in identical twins. Third, in the
affirmative. We must consider not course of routine fingerprint
whether we agree as a factual matter with examination, there are certainly
their responses, see Paoli II, 35 F.3d at opportunities to encounter identical
744, but rather whether these hypotheses fingerprints; as several witnesses
are testable (or tested). We conclude that testified, such a discovery would be very
they are. notable and word would spread quickly
throughout the fingerprint examiner
Consider the first premise (which is
community. Yet no reports of non-
really two hypotheses in one)—that
unique friction ridge arrangements were
human friction ridge arrangements are
introduced, and, indeed, the FBI survey
unique and permanent. The uniqueness
sent to state agencies revealed that none
proposition is testable because it would
had ever encountered two different
immediately be shown false upon the
persons with the same fingerprint. Joint
production of identical friction ridge
Supp. App. at 55.
arrangements taken from different
fingers (either from different fingers on The permanence component of the
the same person, or from two different first hypothesis is also easily
people). The uniqueness proposition has testable—simply take fingerprints from
also been tested in several ways: First, an individual at one time and compare
the full-print matching portion of the them to the prints taken at another time.
FBI’s 50/50 experiment tested it and The Daubert hearing did not provide
found no true matches. 16 Second, studies much evidence of actual testing of this
16
The experiment had its limitations, circumstances, we are unsure if it is
though. First, the test sought to match adequate here. There is limited evidence
fingerprints, not friction skin on the record of why the government’s
arrangements on actual fingers. Second, experts chose a 50 thousand fingerprint
it was only a sample—50 thousand set, and why they could confidently
fingers tested, out of about 60 billion in extrapolate from it. Indeed, there is
the world. While this sample size seems some suggestion that purely practical
quite large, and doubtless would be technical concerns may have dominated
adequate in many if not most this choice. See infra note 18.
25
hypothesis, however. Just how much testing has been done
to this end is unclear from the testimony
We turn next to the testability of the
at the Daubert hearing. On the one hand,
second hypothesis—that positive
it might be that examiners compare a
identification can be made from
latent print to a series of full-rolled prints
fingerprints containing sufficient
until a match is found, and then terminate
quantity and quality of detail. Much of
the process. If this protocol is used for
the debate in this case is masked by the
routine examinations, those examinations
word “sufficient.” For example, a
will not tend to turn up multiple matches,
sufficiency standard of “100 points of
because the examiner stops work after
matching Level 2 detail in an undistorted
finding one match. In essence, the
fingerprint lifted from a clean, smooth
surface” would surely attract less
objection than a sufficiency standard of
“four points of matching Level 2 detail Meagher identified fourteen points of
and passable quality.” The actual Level 2 detail (and unspecified
standard employed by any given FBI supporting Level 3 detail, which we
examiner falls somewhere between these leave aside for simplicity) that matched
extremes, yet the FBI’s reliance on an Mitchell’s right thumbprint to the latent
unspecified, subjective, sliding-scale mix print taken from the gearshift knob.
of “quantity and quality of detail” makes Thus, for purposes of this particular
meaningful testing elusive, for it is identification, “sufficient quantity and
difficult to design an experiment to test a quality of detail” really means “fourteen
hypothesis with unspecified parameters. points of Level 2 detail.” The hypothesis
Two things rescue fingerprint that “fourteen points of Level 2 detail is
identification from this apparent failure enough to make an identification” is
of testability: First, the examiner can falsifiable because one might be able to
testify to how much detail (quantitative show that some latent print matches more
and qualitative) was necessary for the than one full-rolled print under the
particular identification at issue; and “fourteen points of Level 2 detail”
second, any testing directed toward standard.
falsifying the premise that a greater or Actual testing (as opposed to mere
equal amount of detail is sufficient to testability) is harder to come by, probably
make an identification will serve as an because someone seeking to falsify this
attempt (albeit an imperfect one) to hypothesis has no a priori reason to
falsify the adequacy of the identification choose 14 points instead of 13 or 15 as
standard actually used.17 the standard. Nonetheless, any showing
that a more stringent standard (e.g., a 20-
point standard) is fallible necessarily
17
A concrete example may provide implies that the 14-point standard is also
some clarity. In this case, Agent fallible.
26
examiner has assumed the computations extrapolating this to a
conclusion—that no other prints will much larger population of prints
match the latent, and therefore no further suggested that such duplicate matches
search is required. On the other hand, would still be highly improbable.
testimony at the Daubert hearing about
Mitchell’s experts, however, attacked
the AFIS computer system suggests that
the design of the 50/50 experiment, most
the system tests a given latent print
effectively on the ground that
against its entire database (or a selected
pseudolatents are poor approximations of
subset) of full-rolled prints, and returns a
real latent prints.18 This lack of
set of the best candidate matches. This
correspondence undermines the utility of
protocol would tend to expose multiple
the experiment because the issue for
full-rolled prints that match a given
Daubert purposes is the testing of the
latent. Consequently, a lack of multiple
hypothesis that positive identification be
matches from AFIS searches can
made from actual latent fingerprints
constitute testing of the hypothesis that
containing sufficient detail. As we
single positive identifications can be
recount above, see supra page 13,
made from latent fingerprints. Whatever
Mitchell’s experts (particularly Dr.
the case, no state agency claimed in
Stoney) convincingly explained why the
response to the FBI survey that it had
found a latent fingerprint that was
“identified with two different fingers of 18
They also contended that actual tests
the same person or even different
on a larger data set (i.e., more
persons.” Joint Supp. App. at 55. This is
fingerprints) would have been preferable
perhaps the strongest support for the
to statistical extrapolations. However,
government on this point.
significantly larger data sets may be
Modest support also comes from the computationally intractable: The
second part of the government’s 50/50 experiments conducted for this case took
experiment, which matched simulated on the order of a day to run on the
latent prints (pseudolatents) against the computer. But for larger sets of
50,000 full-rolled prints in the sample fingerprints, the number of comparisons
under examination. Setting aside goes up as the second power (i.e., the
spurious results due to mistakes in the square) of the number of prints in the
FBI’s database, the experiment found sample. Thus, a 1 million / 1 million
that each pseudolatent strongly matched experiment would take 20 x 20 = 400
one and only one full-rolled print. In times longer than a 50 thousand / 50
other words, the experiment did not thousand experiment—or on the order of
reveal any counterexample to the a year to complete, given the same
hypothesis that identifications can be computing power. An experiment with
made. Moreover, statistical the FBI’s full AFIS database would take
millennia.
27
process used by the government experts reliability. In sum, the hypotheses that
to generate the pseudolatents for the undergird the discipline of fingerprint
50/50 experiment renders them poor identification are testable, if only to a
substitutes for actual latent prints. In lesser extent actually tested by
brief, the failing flagged by Dr. Stoney is experience, and so we find this factor to
that actual prints are subject to weigh in favor of admitting the evidence.
distortions and artifacts that were not
2. Peer Review
simulated by the pseudolatent generator.
Arguably, the pseudolatents resembled The evidence at the Daubert hearing
actual latents only in that the former were on peer review was not particularly
similar in areal size to the latter. Dr. extensive. Much of the testimony
Stoney’s contention rings true: Distorted, centered around the question whether the
real-world latent prints should tend to be “verification” step in the ACE-V
harder to match to full-rolled prints than protocol—where a second examiner
should computer-generated simulated confirms the identification made by the
latents. Since the 50/50 experiment did first examiner—constitutes effective peer
not adequately model real-world review. On the one hand, this could be
conditions, we cannot say that it viewed as stringent peer review,
significantly supports the government’s equivalent to the best sort used in, for
position. example, the physical sciences, where
peer review most often consists of
In sum, if directed, specific actual
anonymously reviewing a given
testing were the requirement of Daubert,
experimenter’s methods, data, and
we might be hesitant to find this factor
conclusions on paper. Sometimes the
weighing in favor of the government.
review takes the form of reproducing in
There is some force to Budowle’s point
full the results under review—that is, a
that “[n]o one would say any one test or
second investigator repeats the entire
any kind of thing [that] has been done in
course of experiments. Thus the
one hundred years proves uniqueness.”
verification step of ACE-V seems
App. 1013a. But his further point about
usually to be akin to this heightened form
a long history of implicit testing is
of peer review: The government’s
equally forceful: “It’s the culmination of
experts testified that verification often
all of the experiences that [demonstrate
amounts to repeating the whole
uniqueness].” App. 1013a. Moreover,
identification process de novo, though
testability—which assures the opponent
sometimes the verifying examiner will
of proffered evidence the possibility of
merely confirm the match found by the
meaningful cross-examination (should he
initial examiner. See App. 161a.
or someone else undertake the
Moreover, in this particular case, the
testing)—is one of the factors announced
survey of state law enforcement agencies
by the Daubert Court as an indicium of
constitutes verification many times over
28
of the match of Mitchell’s fingerprints. by the government and by Mitchell—that
address more theoretical/foundational
Mitchell’s experts, however, (Dr.
questions, such as an appropriate
Cole in particular) cast some doubt on
minimum point standard, the likelihood
the purity of the verification step.
of two persons having identical friction
Backed by his research, Dr. Cole
ridge arrangements, and so on. Thus the
suggested that fingerprint examiners
publication facet of peer review is not a
have developed an “occupational norm
strong factor, and neither reinforces nor
of unanimity” that strongly discourages
detracts from our conclusion that the peer
the verifying examiner from challenging
review factor favors admission.
the identification made by the initial
examiner. Moreover, Dr. Cole criticized 3. Error Rate
peer review of latent fingerprint
The parties have waged a
identification conclusions for not being
considerable battle of experts over
anonymous. We also acknowledge that
whether a known error rate exists for
the cultural mystique attached to
latent fingerprint identification.
fingerprint identification may infect the
Assuming that such a rate has been
peer review process. But the
soundly established, it is surely a low rate
government’s experts countered that they
of error. But the existence of any error
were aware of cases where the results of
rate at all seems strongly disputed by
the verification step caused the initial
some latent fingerprint examiners.
examiner to withdraw his initial
identification. Looking at the entire The question whether an error rate
picture, the ACE-V verification step may can be established on the existing data is
not be peer review in its best form, but, subtler than the parties seem to
on balance, the peer review factor does acknowledge. Preliminarily, we must
favor admission. distinguish between two error rates: false
positives and false negatives. In this
The peer review factor also
context, false positives are incorrect
encompasses publication, as the
affirmative identifications, and false
dissemination of a work tends to subject
negatives are incorrect findings of
it to scrutiny in the same way that
dissimilarity. A fair amount of the
prepublication peer review does. See
government’s evidence—and also much
Daubert, 509 U.S. at 593-94. On the one
of Mitchell’s response—centers on the
hand, a significant fraction of the
existence vel non of failed
publications in the field concern articles
identifications. For example, the
on technique—for example, the best
government stresses the large number of
practices for preserving latent
state agencies that confirmed its
prints— and such materials say little
identifications, and Mitchell counters by
about the field’s reliability. On the other
pointing to the agencies that failed to
hand, there are articles—introduced both
29
identify the prints. But these Thus we must focus on evidence that
observations go to the rate of false is probative of the rate of false positives.
negatives: While a system of Perhaps the government’s most powerful
identification with a high false negative evidence is the fact that, in the course of
rate may be unsatisfactory as a matter of the FBI survey of state agencies, no
law enforcement policy, in the courtroom jurisdiction ever matched the latent prints
the rate of false negatives is immaterial from the gearshift knob and door handle
to the Daubert admissibility of latent to anyone other than M itchell
fingerprint identification offered to prove himself—despite searches run against (in
positive identification because it is not the aggregate) nearly 70 million ten-print
probative of the reliability of the records. Assuming that every record had
testimony for the purpose for which it is 10 fingerprints, and that the latents
offered (i.e., for its ability to effect a actually were left by Mitchell, the test of
positive identification). 19 the two latent prints against these records
implies something on the order of 1.4
billion comparisons resulting in no false
19 positives. The government can also draw
Moreover, evidence of the false
support from the very limited number of
negative rate is often equivocal. While it
reports of false positive identifications
might suggest a generally error-prone
throughout the many decades that the
method, it is equally consistent with a
technique has been in use. Furthermore,
very conservative method with a low
the government’s 50/50 experiment using
false positive error rate. That is, a
pseudolatents, representing 2.5 billion
method may be designed to lower its
comparisons, also did not register any
false positive error rate by accepting a
false positives, though as we have noted,
large number of false negatives out of an
see supra page 27, it had flaws.
abundance of caution. One very familiar
example of such a system is the criminal Mitchell counters this evidence in
jury using the “beyond a reasonable two different ways, but neither of them
doubt” standard: As the adage (attributed fully refutes the government’s evidence.
to Blackstone) says, “It is better that ten First, he raises a legal challenge,
guilty escape [false negatives] than one claiming that the burden of proof under
innocent suffer [a false positive].” The Fed. R. Evid. 104(a) is up-ended by
same may be true for latent fingerprint effectively requiring him to come
identification—the examiners who forward with examples of false positives.
declared they could not match the latent While Mitchell is correct that Rule
prints in the FBI’s survey (the examiners 104(a) places the burden of proof on the
responsible for the putative false proponent of the evidence (here, the
negatives) may have done so because
they would rather commit a likely false
negative error rather than risk a small chance of a false positive identification.
30
government), see Bourjaily v. United We therefore accept that the error rate
States, 483 U.S. 171, 175 (1987), this has been sufficiently identified to count
does not mean that the burden is static, at this factor as strongly favoring admission
least in terms of a burden of going of the evidence. The error rate has not
forward. Particularly in a case like this, been precisely quantified, but the various
where what is sought to be proved is methods of estimating the error rate all
essentially a negative (i.e., the absence of suggest that it is very low. This follows
false positives), it seems quite from three pieces of evidence we identify
appropriate to us to use a burden-shifting above as favoring the government: (1)
framework. Such a framework was
applied here: The government’s
experts—qualified as knowledgeable in
makes clear that error rates and the
matters pertaining to fingerprint
qualification of the expert are distinct
identification—testified to their being
inquiries. 35 F.3d at 742. The corollary
unaware of significant false positive
to this, however, raises an issue for any
identifications. At that point, it becomes
given fingerprint expert: His testimony
quite reasonable to shift the burden to the
would be more likely to be admitted
opponent of the evidence (here, Mitchell)
(because he would be more qualified) if
to counter this claim with affirmative
he himself demonstrated a low rate of
examples.
false positives in his own work and/or on
Mitchell’s second attack on the his own proficiency tests. Cf. Calhoun v.
government’s evidence of error rates is Yamaha Motor Corp., 350 F.3d 316, 322
factual. He presented evidence that (3d Cir. 2003) (holding that the scope of
fingerprint examiners sometimes make an expert’s testimony was properly
false positive identifications on circumscribed by the scope of his
proficiency examinations. This evidence expertise).
is troubling, but we view it as evidence As suggested above, known false
relating only to the competency of those positives have been attributed to malice
practitioners, leaving undisturbed the or incompetence on the part of the
government’s evidence about the near- examiner, and not to a deeper flaw in the
absence of false positive identifications.20 method itself. Dr. Cole testified that this
“circling the wagons” behavior is yet
another occupational norm of a
20
Mitchell’s experts respond by fingerprint identification community bent
denying the existence of a dichotomy on preserving the unimpeachability of its
between method error rate and methods. But even if every false positive
practitioner error rate, asserting that both identification signified a problem with
are part of a unitary inquiry. We reject the identification method itself (i.e.,
this view as a legal conclusion independent of the examiner), the overall
inconsistent with Paoli II. Paoli II error rate still appears to be microscopic.
31
the absence of significant numbers of Rules of Evidence, admission of expert
false positives in practice (despite the testimony was governed by the Frye test,
enormous incentive to discover them), which required that the evidence must
(2) the absence of false positives in the have gained “general acceptance in the
FBI’s state agency survey, and (3) the particular field in which it belongs.”
statistical computations based on the Frye v. United States, 293 F. 1013, 1014
50/50 experiment. (D.C. Cir. 1923). Daubert held that
Congress’s adoption of Rule 702
4. Maintenance of Standards
legislatively overruled Frye, see 509 U.S.
Closely related to the question of at 588-89, but at the same time
error rate is the maintenance of standards acknowledged that “‘general acceptance’
to guide the application of the method. can yet have a bearing on the inquiry,”
This is lacking here in some measure. id. at 594. Thus we consider as one
The FBI maintains that its flexibility to factor in the Daubert analysis whether
consider a mixture of Level 2 and Level fingerprint identification is generally
3 detail in making identifications renders accepted within the forensic
its method superior to and more flexible identification community. The answer is
than the minimum-points standards used yes, as demonstrated by the results of the
in some states and various foreign FBI’s survey of state agencies. See App.
jurisdictions. The tradeoff, though, is 383a. Mitchell’s only argument with
that the FBI’s method lacks a significant respect to this factor is that there is no
yardstick of standard-based objectivity. scientific community that generally
In contrast, with a minimum-point accepts fingerprint identification. But
standard there is at least some agreement the scientific/nonscientific distinction is
about what constitutes a Galton point and irrelevant after Kumho Tire, and
what does not. accordingly we reject the argument. We
also note that the Court of Appeals for
Some standards do remain: There are
the Fourth Circuit, in addressing the
procedural standards (such as ACE-V)
same question that we are considering
and terminological standards (such as the
here, relied heavily on general
naming conventions for Galton points).
acceptance to support the admission of
But these are insubstantial in comparison
fingerprint identification evidence. See
to the elaborate and exhaustively refined
United States v. Crisp, 324 F.3d 261 (4th
standards found in many scientific and
Cir. 2003). We likewise conclude that
technical disciplines. As such, we find
this factor weighs in favor of admitting
that this factor does not favor admitting
the evidence.
the evidence.
6. Relationship to Established
5. General Acceptance
Reliable Techniques
Prior to the adoption of the Federal
Although the parties have not
32
provided us with extensive analysis of Schneider ex rel. Estate of Schneider v.
the relationship of the principles and Fried, 320 F.3d 396, 407 (3d Cir. 2003)
practice of latent fingerprint (“[The defendant’s] argument appears to
identification to “‘more established challenge the qualification of [the
modes of . . . analysis,’” Paoli II, 35 F.3d plaintiff’s expert]; although we note that
at 742 (quoting Downing, 753 F.2d at ‘the degree to which the expert testifying
1238-39), it seems to us that this is the is qualified’ also implicates the reliability
best heading under which to consider the of the testimony.” (quoting Paoli II, 35
government’s evidence from the fields of F.3d at 742)).
developmental embryology and anatomy.
The qualifications of Agents Meagher
The testimony and documentary
and Johnson matter the most, because
materials introduced on these topics
they were the government’s experts at
during the Daubert hearing—especially
trial. Both had estimable qualifications.
through Dr. Babler—tended to establish
The putative blemish on their
biological bases for the uniqueness and
qualifications, which we hint at above,
permanence of areas of friction ridge
see supra note 20, is that neither testified
skin. Since no question was raised about
extensively about his own known error
the soundness and reliability of the work
rate as a practitioner (as might be
in these specialties, we are comfortable
revealed, for example, by proficiency
that the reliability of these fields is well-
tests they had taken). While this is by no
established. Independent work in these
means fatal to the admissibility of the
fields bolsters the underlying premises of
testimony, prosecutors would be well-
fingerprint identification, and so we find
advised to elicit testimony about their
that this factor lends additional support
experts’ personal proficiency, rather than
to admitting the latent fingerprint
relying on the discipline’s good general
identification evidence.
reputation among lay jurors. Failing that,
7. Degree to Which the Expert we are confident that defense counsel
Testifying Is Qualified will use cross-examination to expose
incompetent fingerprint examiners. In
As we have noted before, there were
this case, Agent Meagher’s uniquely
essentially no challenges to the
strong qualifications and the
qualifications of the government’s
confirmatory identifications from state
experts (or of Mitchell’s experts, for that
agencies are a surrogate for testimony
matter), but the binary question whether
about Agent Meagher’s and Agent
an expert is or is not qualified to testify
Johnson’s personal proficiency as
to a particular subject is analytically
examiners.21 Thus this factor supports
distinct, under Rule 702, from the more
finely textured question whether a given
expert’s qualifications enhance the 21
Mitchell’s counsel came close to
reliability of his testimony. See
inquiring on voir dire about Agent
33
admitting the government’s evidence. government offered some evidence of the
non-judicial uses of fingerprint
8. Non-Judicial Uses
identification, particularly through Dr.
We have recognized that evidence of Budowle. App. 639a-641a. In analyzing
the non-judicial uses of the technique in this factor, the government relies on
question is relevant to the Daubert three categories of non-judicial uses of
reliability inquiry. See Paoli II, 35 F.3d fingerprints: (1) the identification of
at 742. This is because non-judicial use arrested persons (e.g., checking an
of a technique can imply that third arrestee’s record at the time of booking);
parties—i.e., persons other than the (2) biometric identification as a security
proponent of the expert testimony, for measure (e.g., authenticated access to a
whom the testimony is typically self- computer system) or for regulatory
serving—would vouch for the reliability purposes (e.g., fingerprinting for driver
of the expert’s methods.22 The licensing as an anticounterfeiting
measure); and (3) identification of partial
remains following disasters. While at
Meagher’s results on proficiency first blush this seems like a factor
examinations administered internally by strongly supporting admissibility, the
the FBI, but did not actually ask a bloom recedes upon close analysis.
specific question. App. 1456a-1457a.
The government did ask Agent Johnson Latent fingerprint identification
about his results on FBI proficiency works from fingerprints that are partial
examinations, but defense counsel and subject to distortions. All the non-
objected and the Court sustained the judicial uses listed above either use full-
objection on the ground that Johnson had
already been qualified as an expert. App.
1652a-1653a. As our discussion in the introduced evidence of the widespread
text suggests, this question was commercial use of biometric
proper—even desirable—and the District identification technology based on
Court was wrong to sustain the objection. fingerprints. It is possible that
commercial adoption of the method
22
Keeping this rationale in mind is signals acceptance of its reliability. But,
helpful, because some non-judicial uses as Mitchell’s uncontradicted survey
will support the required inference of evidence showed, fingerprint
third-party confidence better than others. identification enjoys a near-mythical
For example, no one would argue that the reputation for reliability, and so the
commercial popularity of astrology for evidence of commercial adoption is
non-judicial use makes it fit for equally consistent with uncritical
admission under Rule 702. This case acceptance of a method that consumers
may provide another example: As we merely believe—but do not know—to be
discuss below, the government reliable.
34
rolled prints, or avoid the difficulties identification, the government’s experts
introduced by distortion— or both. Both did testify that fragments of friction ridge
differences are critical, as Mitchell’s skin have been used to make
experts testified and as the government’s identifications, but even those
experts acknowledged: It is significantly identifications still differ from latent
easier to match one clean full-rolled print fingerprint identification because
to another than it is to match a somewhat identification using actual skin eliminates
distorted latent fragment to a full-rolled the challenges introduced by
print. 23 Thus, in the case of identification distortions.25 Thus there is less here than
of arrestees, the booking officer will take meets the eye, and while this factor
a ten-print card with a full set of full- supports admitting the government’s
rolled prints, and if the prints do not evidence, it does so only weakly.
come out cleanly, the officer has the
D. Application to the Record of
opportunity to take a second set of
Core Daubert Principles
impressions. Likewise, the security and
regulatory uses of fingerprinting Although it is clear from the
generally rely on clean, full-rolled foregoing analysis of the Daubert factors
prints.24 As for disaster-victim
App. 639a. This makes such a technique
23
The government’s experts implicitly more akin to latent fingerprint
acknowledged this—even before the identification, but it still differs in
Daubert hearing—in the very design of significant ways. First, the fraction of
the 50/50 experiment: The first stage of the print will be distortion-free, unlike
that experiment was the matching of full- actual latent prints. Second, the 6%
rolled prints to full-rolled prints, but the portion is likely to be taken from a
ultimate aim of the experiment was to portion of the finger with a high areal
test pseudolatent prints against full-rolled density of Level 2 detail, a luxury that
prints to better simulate the more latent fingerprint examiners do not have.
demanding exercise of latent fingerprint
25
identification. Of course, as we have We also understand the task in
noted above, see supra page 14, even this disaster-victim identification as being
refined experiment used pseudolatents, (merely) to individualize one victim out
and thus failed to capture the of at most a few thousand victims, while
complexities of matching latent prints forensic criminal identification seeks to
marred by distortions and artifacts. individualize the defendant out of a pool
of millions of potential perpetrators.
24
Dr. Budowle testified that current Accordingly, there seems to be less of a
commercial research and development threat of a false positive in the context of
seeks to use as little as 6% of the area of disaster-victim identification than in
the full print to make an identification. forensic criminal identification.
35
that the government’s fingerprint scientifically sound and
evidence passes muster, Mitchell methodologically reliable fashion.
contends that the government’s inability
Ruiz-Troche v. Pepsi Cola Bottling Co.,
to establish that its evidence is correct,
161 F.3d 77, 85 (1st Cir. 1998) (citations
and its failure to show that its evidence
omitted) (quoting Daubert, 509 U.S. at
meets the standards required of
590) (citing Kannankeril v. Terminix
“science,” mean that the government’s
Int’l, Inc., 128 F.3d 802, 806 (3d Cir.
evidence must be excluded. M itchell is
1997); Paoli II, 35 F.3d at 744), quoted
wrong. This is established by Daubert
in part in In re TMI Litigation, 193 F.3d
itself, which requires no more than that
at 692. Good grounds for admission
the Court satisfy itself that “good
plainly exist here.
grounds” exist for the expert’s opinion.
See 509 U.S. at 590. To the extent that Mitchell’s attack
rests on his experts’ claim that latent
Judge Selya has put it well:
fingerprint examiners do not engage in
Daubert does not require that a “science,” he does not heed the text of
party who proffers expert Rule 702 or the Supreme Court’s
testimony carry the burden of teachings in Kumho Tire. Rule 702
proving to the judge that the “makes no relevant distinction between
expert’s assessment of the ‘scientific’ knowledge and ‘technical’ or
situation is correct. As long as an ‘other specialized’ knowledge.” Kumho
expert’s scientific testimony rests Tire, 526 U.S. at 147. The very holding
upon “good grounds, based on of Kumho Tire is that those categories
what is known,” it should be simply address what type of testimony is
tested by the adversary covered by the rule, and that, in
process— competing expert addressing admissibility under Rule 702,
testimony and active cross- the same factors generally apply to all
examination—rather than categories of expert testimony. Kumho
excluded from jurors’ scrutiny for Tire explicitly rejected as unworkable
fear that they will not grasp its and unnecessary any “distinction
complexities or satisfactorily between ‘scientific’ knowledge and
weigh its inadequacies. In short, ‘technical’ or ‘other specialized’
Daubert neither requires nor knowledge.” Id at 148. That a particular
empowers trial courts to discipline is or is not “scientific” tells a
determine which of several court little about whether conclusions
competing scientific theories has from that discipline are admissible under
the best provenance. It demands Rule 702; at best, there will be some
only that the proponent of the overlap between the factors that bear on
evidence show that the expert’s a field’s status as “science” and
conclusion has been arrived at in a Daubert’s factors addressed to reliability.
36
Reliability remains the polestar. referred to as a “gatekeeper.” This
metaphor is particularly apt because it
Mitchell seeks a significantly higher
works two ways: On the one hand, the
threshold of admissibility under Rule
court must exclude some evidence as a
702, and, consequently, a very different
gatekeeper, by “preventing opinion
allocation of responsibility between
testimony that does not meet the
judge and jury. Yet Rule 702 and
requirements of qualification, reliability
Daubert put their faith in an adversary
and fit from reaching the jury,”
system designed to expose flawed
Schneider, 320 F.3d at 404. But on the
expertise. Mitchell misconceives this
other hand, the court is only a
balance struck by the framers of Rule
gatekeeper, and a gatekeeper alone does
702 and the Daubert Court. As the
not protect the castle; as we have
Advisory Committee explained in the
explained, “[a] party confronted with an
context of the December 1, 2000
adverse expert witness who has
amendment to Rule 702, “Daubert did
sufficient, though perhaps not
not work a ‘seachange over federal
overwhelming, facts and assumptions as
evidence law,’ and ‘the trial court’s role
the basis for his opinion can highlight
as gatekeeper is not intended to serve as
those weaknesses through effective
a replacement for the adversary system.’”
cross-examination.” Stecyk v. Bell
Fed. R. Evid. 702 advisory committee’s
Helicopter Textron, Inc., 295 F.3d 408,
note (quoting United States v. 14.38
414 (3d Cir. 2002).
Acres of Land Situated in Leflore
County, Miss., 80 F.3d 1074, 1078 (5th Indeed, as our discussion of the
Cir. 1996)). Daubert itself emphasized various Daubert factors suggests, many
the point: “Vigorous cross-examination, of them are guarantees that cross-
presentation of contrary evidence, and examination and adversary testing will be
careful instruction on the burden of proof possible: Testability ensures the basic
are the traditional and appropriate means possibility of meaningful cross-
of attacking shaky but admissible examination. Peer review and
evidence.” 509 U.S. at 596. These trial publication also provide raw material for
practices and procedural devices like the the cross-examining attorney to confront
directed verdict, “rather than wholesale the expert with. The existence of a
exclusion under an uncompromising . . . known error rate may force an expert to
test, are the appropriate safeguards where admit to the limitations of his or her
the basis of scientific testimony meets methods. The maintenance of standards
the standards of Rule 702.”
Id. We provides an objective benchmark to
echoed this in Paoli II, where we noted confirm that the expert did indeed follow
“Rule 702 mandates a policy of liberal her method. And so on. Since these
admissibility.” 35 F.3d at 741. factors were well-satisfied in this case, it
was with confidence that the baton was
In this context, the court is often
37
passed from the Court to the adversary Third, this case does not announce a
system. categorical rule that latent fingerprint
identification evidence is admissible in
The principle that cross-examination
this Circuit, though we trust that the
and counter-experts play a central role in
foregoing discussion provides strong
the Rule 702 regime has three important
guidance. And as we explain in
applications to this case. First is the core
Velasquez, both Rule 702 and the Sixth
holding of United States v. Velasquez, 64
Amendment’s Confrontation Clause
F.3d 844, 848-49 (3d Cir. 1995): Experts
permit any criminal defendant to put the
with diametrically opposed opinions may
prosecution to its proof at trial. None of
nonetheless both have good grounds for
this, however, should be read to require
their views, and a district court may not
extensive Daubert hearings in every case
make winners and losers through its
involving latent fingerprint evidence.
choice of which side’s experts to admit,
The Supreme Court has emphasized that
when all experts are qualified. Rather,
district courts “have the same kind of
the same standards of reliability and
latitude in deciding how to test an
helpfulness should be applied to both
expert’s reliability” as they do in
sides, with a “‘preference for admitting
deciding “whether or not that expert’s
any evidence having some potential for
relevant testimony is reliable.” Kumho
assisting the trier of fact.’” Id. at 849
Tire, 526 U.S. at 152. Thus a district
(quoting DeLuca v. Merrell Dow Pharm.,
court would not abuse its discretion by
Inc., 911 F.2d 941, 956 (3d Cir. 1990)).
limiting, in a proper case, the scope of a
We return to this in the next section,
Daubert hearing to novel challenges to
where we discuss the District Court’s
the admissibility of latent fingerprint
handling of Mitchell’s experts.
identification evidence—or even
Second, district courts will generally dispensing with the hearing altogether if
act within their discretion in excluding no novel challenge was raised.
testimony of recalcitrant expert
E. Conclusion on the Admissibility
witnesses—those who will not discuss on
of the Government’s Evidence
cross-examination things like error rates
or the relative subjectivity or objectivity We conclude, on the record before us
of their methods. Testimony at the read in light of the basic Daubert
Daubert hearing indicated that some principles, that most factors support (or
latent fingerprint examiners insist that at least do not disfavor) admitting the
there is no error rate associated with their government’s latent fingerprint
activities or that the examination process identification evidence. There are good
is irreducibly subjective. This would be grounds for its admission. We therefore
out-of-place under Rule 702. But we do conclude that the District Court did not
not detect this sort of stonewalling on the abuse its discretion in holding the
record before us. government’s evidence admissible.
38
IV. Admissibility of Mitchell’s does not disclose that Mitchell’s experts
Expert Testimony were excluded or the scope of their
testimony improperly limited. To the
A. Introduction
extent that the record is even ambiguous,
Mitchell asserts that he was not the onus was on Mitchell’s counsel to
permitted to put on all of his experts at make a clear record, especially given the
trial, and hence was not able to multiple, nuanced categories of
effectively counter or undermine the testimony being discussed in the
government’s fingerprint identification colloquies with the District Court on this
evidence. Specifically, Mitchell matter.
contends that his three principal experts
As in the previous section, we review
at the Daubert hearing— Dr. Stoney,
the District Court’s decision to admit or
Prof. Starrs, and Dr. Cole— were, as a
exclude expert testimony for abuse of
practical matter, excluded from the trial
discretion, see In re TMI Litig., 193 F.3d
by the District Court’s rulings limiting
at 666, but also note that an error of
the scope of their testimony. Mitchell
law—such as a failure to follow
argues that our holding in United States
Velasquez—is an abuse of discretion, see
v. Velasquez, 64 F.3d 844 (3d Cir. 1995),
Planned Parenthood v. Attorney Gen.,
requires that he be able to present
297 F.3d 253, 265 (3d Cir. 2002). We
qualified expert testimony before the jury
begin with a discussion of Velasquez and
to challenge the government’s expert
then turn to the District Court’s rulings.
testimony. The government does not
dispute this as a legal matter; instead it B. Velasquez
takes issue with Mitchell’s premise,
The defendant in Velasquez was tried
arguing that the District Court did not in
on federal drug, firearms, and conspiracy
fact exclude Mitchell’s witnesses. The
charges. A fact in issue at trial was the
foregoing discussion about the central
origin of certain packages with
role of adversary testing in expert
handwritten mailing labels, packages the
testimony has direct application.
government sought to connect to
If Mitchell were correct that his Velasquez’s coconspirators. The
experts—who were undoubtedly government proposed to make the
qualified to offer their expert connection by way of forensic
opinions—were precluded from handwriting identification, and the
testifying in opposition to the District Court qualified an analyst from
government’s experts, our holding in the Postal Inspection Service to testify to
Velasquez would obligate us to vacate the handwriting identification. In
Mitchell’s conviction and remand for a response, Velasquez proffered his own
new trial at which their testimony would expert—a law professor critical of
be heard. But our review of the record handwriting analysis whose research, we
39
held, qualified him as an expert in reliability of the opinion offered by the
handwriting analysis—to testify that proponent expert. See Velasquez, 64
handwriting analysis in general is not F.3d at 852 (holding that Velasquez’s
reliable, and, in the alternative, that the expert “would have assisted the jury in
particular identifications made by the determining the proper weight to accord
government’s expert were unreliable. [the government’s expert’s] testimony”).
The District Court declined to admit
In sum, Velasquez announces a parity
Velasquez’s expert’s testimony,
principle: If one side can offer expert
reasoning that “whether or not
testimony, the other side may offer
handwriting expertise is admissible in a
expert testimony on the same subject to
courtroom is a legal question that was
undermine it, subject, as always, to
resolved against the defense when the
offering a qualified expert with good
court permitted [the government’s
grounds to support his criticism. Having
expert] to testify as a qualified expert in
this in mind, we turn to what happened in
the field of handwriting analysis.”
Mitchell’s case.
Velasquez, 64 F.3d at 846-47 (internal
quotation marks omitted). C. The Parties’ Interpretations of
the District Court’s Rulings
On appeal, we reversed. The central
error in the District Court’s reasoning The District Court addressed the
was its failure to follow the “axiom” that scope of Mitchell’s proposed trial
“the reliability of evidence goes ‘more to experts’ testimony on two occasions
the weight than to the admissibility of the before trial: first at the time it ruled on
evidence.’” Id. at 848 (quoting United the admissibility of the government’s
States v. Jakobetz,
955 F.2d 786, 800 (2d expert testimony (the “first colloquy”),
Cir. 1992)). Following that principle, the and again immediately prior to jury voir
substantive reliability question is as dire (the “second colloquy”). Because
much for the jury (in the context of our discussion may be illuminated for
courtroom adversary testing) as it is for some readers by a transcript of these
the court (in the context of a Daubert colloquies, we rescribe the relevant
hearing). Consequently, we held that it passages in the Appendix.
was an error of law to fail to admit the
In brief, the government claims that
testimony of a qualified opposing expert,
the District Court simply precluded
provided that the testimony meets the
Mitchell’s experts from testifying to the
usual criteria for admission under Rule
(irrelevant, it argues) issue of whether or
702. Moreover, in situations covered by
not latent fingerprint identification is a
Velasquez, the opposing expert’s
science; all other testimony by Mitchell’s
testimony will ordinarily be helpful to the
experts regarding the reliability of the
jury precisely because it is opposing—it
discipline, the government says, was
will help the jury to evaluate the
ruled admissible by the District Court.
40
Mitchell, however, submits that the go with it through the life of this
District Court expressly precluded two of case.
his witnesses (Prof. Starrs and Dr. Cole)
App. 1030a-1031a.
from testifying at trial, and severely (and
impermissibly, he submits) restricted the The government interprets the three
scope of the testimony of his third expert tiers as follows: First, the defense could
(Dr. Stoney). To support these positions, challenge the specific identifications
both parties offer interpretations of the made of Mitchell’s prints. (Something
colloquies with the District Court. like this was actually done—M itchell put
on the fingerprint examiners who
The government advances a three-tier
responded to the FBI survey and who
theory of the rulings of the Court on
initially did not match the latent prints
defense expert testimony, supported
found in the car to his fingerprints.)
principally by the following statement by
Second, the defense could challenge the
the District Court during the first
reliability of latent fingerprint
colloquy:
identification in general, by arguing, for
I am not going to limit the defense example, that the discipline lacked an
from calling latent fingerprint error rate, and thus the government
experts to testify as to the ability expert witnesses’ testimony was
not to identify or make an unreliable. (This, the government
identification from the recognizes, is compelled by Velasquez.)
fingerprints and I am also going to Third, the defense could not put on
allow the defense to call any latent witnesses to speak to the essentially
fingerprint expert who indicates definitional question of whether latent
that fingerprints are not reliable fingerprint identification was a science.
sources of identification.
The government primarily directs our
Only for that limited purpose attention to four points in the colloquies.
and I am going to exclude First is the passage quoted above from
evidence as to whether or not it’s the beginning of the first colloquy,
scientific, technical or whatever. before counsel for either side had even
It has no relevance before this jury spoken. Second, moving to the second
here. The question is whether or colloquy (nearly five months later), the
not an identification can be made Court arguably suggested a more blanket
by examination of exclusion of defense testimony, but the
fingerprints—latent government counters that the written
fingerprints—and the record of record of the colloquy is misleading
this case, as far as the because the whole topic of discussion
Daubert hearing will remain intact had caught the Court by surprise and the
with these proceedings and will Court’s recollection needed to be
41
refreshed. (Indeed, for much of the against admitting testimony by experts
colloquy, the Court did not even have a other than Dr. Stoney. There, the Court
transcript of the prior ruling before it.) said, “the only one that appears close [to
Third, the government points out that admissible] . . . would be Dr. David A.
during the second colloquy, the Stoney.” 26 Ohio App. 1032a. Second,
prosecutor advanced his own recollection Mitchell points to the Court’s statement
of the ruling, saying that, in addition to near the end of the first colloquy that “I
permitting the defense to call experts that am not getting into the issue of latents in
would testify that the fingerprints in this general. That’s been established,” App.
case did not match Mitchell’s, “[the 1033a, contending that this runs directly
Court] also said [to the defense] that they
can call any qualified expert . . . that
would testify that fingerprints are not 26
Mitchell bolsters this contention by
reliable sources of identification.” App.
pointing to a press release issued by the
1071a. The government emphasizes that
United States Attorney for the Eastern
this was consistent with the three-tier
District of Pennsylvania on the day of the
theory.
first colloquy. With respect to Mitchell’s
Fourth, the government reads the proposed experts, the press release
ultimate ruling at the end of the second stated:
colloquy—especially the Court’s The Court granted the
approval of defense expert testimony by government’s request to exclude
experts addressing “Mr. Mitchell’s the testimony of the defendant’s
fingerprints or anyone else’s experts James E. Starrs, a
fingerprints,” App. 1072a— as a Professor at George Washington
reaffirmance of the three-tier ruling. University Law School, David A.
This should have special significance Stoney, Ph. D. of the McCrone
because it was the Court’s last word on Research Institute, Chicago, and
the subject. Finally, looking beyond the Simon A. Cole, Ph.D. Those
colloquies, further circumstantial support witnesses testified that fingerprint
for the prosecution’s three-tier theory can evidence and comparisons are not
be drawn from the District Court’s ruling scientific evidence under Daubert.
at trial that M itchell was allowed to 2d Supp. App. 1a. The government
cross-examine Agent Meagher on several counters that this is consistent with its
issues pertaining to the general reliability three-tier theory because the release
of latent fingerprint identification. See characterizes the ruling as precluding
App. 1543a. Mitchell’s experts from testifying about
whether latent fingerprint identification
For his part, Mitchell first directs our
is scientific. Whatever the case, we note
attention to the first colloquy where the
that such press releases do not strike us
Court seemed to make a specific ruling
as reflecting good practice.
42
counter to our holding in Velasquez. D. Discussion
Third, Mitchell disagrees with the
We begin our analysis with the point
government’s claim that some of the
on which the parties are in agreement:
second colloquy was colored by the need
The District Court excluded expert
to refresh the Court regarding the issue;
testimony on the subject of whether
Mitchell would have us take the Court’s
latent fingerprint identification is a
statements literally—for example a “yes”
science. We hold that it was correct to
from the Court following a statement by
do so. Kumho Tire renders the question
defense counsel that Mitchell had been
of “is it science?” immaterial to the
“precluded from introducing [testimony]
that the fingerprint field is of
questionable reliability,” App. 1067a, as
fingerprint identification
evincing agreement rather than as a
technology is reliable pursuant to
signal to “go on.” Fourth, Mitchell does
the Daubert/Kumho standards.
not read the Court’s ultimate ruling at the
We clarified that the only issue for
end of the second colloquy to be a
the experts to discuss at the
blanket authorization to put on any
Mitchell trial was whether or not
reliability-related expert testimony, but
an identification could be made by
rather a very limited approval of
examination of the specific latent
testimony assailing any government
fingerprints and the record of this
testimony that relied on a particular
case.
point-based standard for identification.
App. 5a.
This interpretation seems consistent with
We decline to rely on these
Mitchell’s counsel’s contemporaneous
statements and accept the government’s
representation that they had no witness
submission that the District Court’s
that would meet the Court’s
statements in its post-trial order are not
requirement. 27
entitled to weight. The Court was
looking back at oral rulings that were
over a year old, and made its ruling
27
Mitchell also contends that his following a trial at which Mitchell had
reading of the District Court’s rulings is not, in fact, put on experts to opine that
correct because of statements made by fingerprint identification was not a
the District Court as part of its ruling on reliable discipline. And at all events,
Mitchell’s Fed. R. Crim. P. 33 motion for when the question is (as here) whether a
a new trial. In that order, the District party has preserved the record for appeal,
Court explained that, based on its earlier the salient issue is not what the District
rulings, the NIJ solicitation would not Court thought it had ruled, but what the
have been admissible because: state of the record before us is. Thus the
[W]e excluded any evidence at post-trial ruling is irrelevant to our
trial as to whether or not discussion.
43
jury’s determination (and the court’s, for given witness will or will not testify—it
that matter, see supra page 36). has serious pitfalls for creating an
Consequently, such testimony will not appellate record. If an expert witness is
“assist the trier of fact . . . to determine a excluded, it is generally because he or
fact in issue,” making the testimony not she is unqualified; but this is irrelevant
admissible under Rule 702. Since the here because the parties do not dispute
evidence is opinion testimony, there is no the qualifications of the witnesses. To be
other appropriate basis on which to admit sure, expert witnesses may also as a
it, and so the District Court was correct practical matter be excluded because
to exclude it. they cannot testify to any admissible
subject matter. But in such a case, the
On balance we agree with the
legally operative question is “what is
government that the District Court
(are) the proposed subject matter(s) of
consistently operated on a three-tier
the witness’s testimony?” This is
theory of what expert testimony was
necessarily so because the only way for
admissible—allowing specific criticisms
appellate courts to state the law for future
and general reliability criticisms, but
cases is to do so in terms regarding the
excluding testimony about whether latent
subject matter of proposed testimony—as
fingerprint identification is a “science.”
we did in Velasquez, for example. Thus
At the same time, we acknowledge the
speaking in terms of which witness is
force of Mitchell’s reading. But even if
admissible is actually one step removed
Mitchell’s reading were correct, he
from the legally operative question.
would not prevail because the record
Using witnesses as shorthand for subject
does not establish an affirmative
matters may be convenient, but it
exclusion of testimony that should have
becomes confusing and the law becomes
been admitted under Velasquez. Counsel
difficult to apply, especially when a
simply did not seek rulings on the
given witness testifies on multiple
admissibility of proposed expert
subject matters.
testimony, and instead simply discussed
admissibility in terms of proposed expert This is precisely what happened here:
witnesses. From these rulings, we cannot All of the principal defense experts
say that the District Court erred. testified in some measure on whether
fingerprint identification was a
To elaborate, both Mitchell and the
“science.” This, we have already held
District Court framed the issue as
above, was properly excluded. Those
whether a given witness was or was not
same experts also testified to the
admissible, and not as whether testimony
reliability (or lack thereof) of fingerprint
on a given subject matter was admissible.
identification. That evidence, under
While this approach may seem
Velasquez, would have been
pragmatic—after all, from a logistical
unambiguously admissible. Yet the
point of view, what matters is whether a
44
admissibility question was not, as best could have proffered the subject matter
we can divine from the colloquies, of testimony he would like to present.
framed in this way. Instead, he proffered the witnesses he
would like to call. Mitchell could have
At the Daubert hearing, Mitchell’s
attempted to put his witnesses on the
counsel cast his case as an assault on the
stand to preserve his objections. Instead,
scientific status of fingerprint
they never appeared at trial.
identification. Indeed, at the Daubert
hearing, Dr. Stoney was offered as “an At best, Mitchell offers a modest
expert with respect to scientific status or circumstantial case that, if he had posed
lack thereof with respect to latent the question of the admissibility of
fingerprint identification,” App. 761a; defense expert testimony that fingerprint
Prof. Starrs was offered as “an exert [sic] identification is unreliable, the District
in forensic science qualified to provide Court would have excluded it, contrary to
an opinion as to whether latent Velasquez. But if the question was never
fingerprint examination meets the criteria asked— and our review of the record
of science,” App. 813a-814a; and Dr. suggests it was not—then it is hardly
Cole was offered as “an expert in the grounds for reversal that the District
field of science and technology studies Court might have ruled incorrectly. Thus
with particular expertise regarding the the District Court committed no error.
fingerprint profession,” App. 939a. At
no point thereafter did Mitchell attempt
to have these witnesses qualified V. The District Court’s Declaration
differently. of Judicial Notice
Mitchell’s attorneys hewed to this We next turn to the question whether
rubric even after the hearing, and so the District Court properly took judicial
interpreted the District Court’s (proper) notice that “human friction ridges are
exclusion of “is it science?” testimony as unique and permanent throughout the
a wholesale exclusion of their witnesses. area of the friction ridge skin, including
They were not required to approach the small friction ridge areas, and that . . .
matter in this way, and the District Court human friction skin arrangements are
was surely not required to disabuse unique and permanent.” App. 1472a.
Mitchell’s counsel of this notion. “[A] court’s decision whether to take
Mitchell could have asked the Court judicial notice of certain facts is
whether Prof. Starrs and Dr. Cole would reviewed for abuse of discretion.” In re
be permitted to testify as to the reliability NAHC, Inc. Sec. Litig., 306 F.3d 1314,
of fingerprint identification, provided 1323 (3d Cir. 2002).
that they did not opine on the irrelevant
A. Appropriateness of Judicial Notice
issue of whether it was science. Instead,
he accepted their exclusion. Mitchell Federal Rule of Evidence 201(b)
45
specifies what matters are the proper ridge areas” seems problematic—what is
subject of judicial notice:28 “small”? (In light of the issues at trial,
we imagine that it was a reference to
A judicially noticed fact must be
areas the size of typical latent
one not subject to reasonable
fingerprints.) Even without reference to
dispute in that it is either (1)
the substantive standard in Rule 201(b),
generally known within the
we wonder whether the very phrasing of
territorial jurisdiction of the trial
the judicially noticed material signals
court or (2) capable of accurate
that the District Court erred.
and ready determination by resort
to sources whose accuracy cannot Vagueness and irrelevance aside,
reasonably be questioned. judicial notice of these matters clearly
failed Rule 201(b). The Rule requires
The actual phrasing offered by the
that the matter “not [be] subject to
government and adopted by the District
reasonable dispute.” Yet much of
Court is opaque; while we can
Mitchell’s presentation at the Daubert
comprehend the notion that friction ridge
hearing was directed at disputing this
arrangements are permanent, we are
very proposition;29 if the question
unsure what it means to describe
merited such an extensive Daubert
“arrangements,” considered in the
hearing, it surely was not suitable for
abstract, as “unique.” On one level, this
resolution by judicial notice. Moreover,
seems irrelevant: Since the issue at trial
Rule 201 speaks in terms of “fact[s].”
was latent fingerprints, it is difficult to
Here, the Court took judicial notice of a
see how general propositions about
scientific conclusion—something which
“arrangements” are related to any “fact
is subject to revision—not a “fact.” 30
that is of consequence to the
One of the purposes of a Daubert hearing
determination of the action,” Fed. R.
Evid. 401. Moreover, “small friction
29
One of Mitchell’s own experts, Dr.
Stoney, did agree, however, that small
28
Rule 201 also provides that a party areas of friction ridge skin are unique.
be “heard as to the propriety of taking
30
judicial notice,” Fed. R. Evid. 201(e); The distinction implied by Rule
Mitchell was heard in the course of the 201(b)’s use of “fact” can be made
Daubert hearing. Further, the Rule clearer by the use of more polarized
requires that “[i]n a criminal case, the examples: Matters like “February 7, 1977
court shall instruct the jury that it may, was a Monday” (a fact) are suitable for
but is not required to, accept as judicial notice, while propositions like
conclusive any fact judicially noticed,” “daily exercise reduces the likelihood of
Fed. R. Evid. 201(g), a caveat that the heart disease” (a scientific conclusion)
Court included in the jury instructions. are not.
46
is to educate the Court as to the relevant Cir. 1999) (quoting Murray v. United of
expertise. That the Daubert hearing Omaha Life Ins. Co., 145 F.3d 143, 156
consumed five days before the Court (3d Cir. 1998)). We conclude that the
could take judicial notice only further error was harmless.
compels the conclusion that this “fact”
The record of the Daubert hearing
was neither “generally known” nor
establishes that the government could
“capable of . . . ready determination.”
have adduced estimable testimony—both
The government’s defense of the in its quantity and quality—in place of
District Court’s taking of judicial notice the District Court’s taking judicial notice.
focuses on the large number of cases The ready availability of probative,
where courts have taken judicial notice credible substitute evidence suggests
of the uniqueness of fingerprints. None with a high probability that the jury’s
of the cases cited by the government is verdict would not have changed had the
binding on this Court. More to the point, District Court declined to take judicial
none of them concern judicial notice of notice and the government been forced to
the uniqueness and permanence of “small put on live testimony. The Court of
areas” of friction ridge skin—rather, the Appeals for the Fifth Circuit has
cases generally concern the uniqueness endorsed the view that the availability of
of full fingerprints, or the method of cumulative or substitute evidence can
fingerprint identification. While we have make admission of evidence harmless.
doubts about the propriety of taking See United States v. Arroyo, 805 F.2d
judicial notice even in those cases (one 589 (5th Cir. 1986); cf. United States v.
need only look at our Daubert analysis Anderskow, 88 F.3d 245, 251 (3d Cir.
above to see that the matter is in dispute), 1996) (holding that improper admission
for present purposes we need only note of cumulative evidence is generally
that the cases cited by the government harmless error). We also note that
are clearly distinguishable. Thus we Mitchell was free to put on evidence to
conclude that it was error for the Court to rebut the substance of the Court’s
take judicial notice as it did. judicial notice, see Gov’t of V.I. v.
Gereau, 523 F.2d 140, 147 n.17 (3d Cir.
B. Harmless Error Analysis
1975), but did not do so.
Having concluded that it was error
We recognize the possibility that the
for the District Court to take judicial
Sixth Amendment’s Confrontation
notice as it did, we must consider
Clause may be implicated when a court
whether the error was harmless. Under
undertakes a harmless error analysis in a
our precedent, an error is harmless if “‘it
criminal case—such as we are doing
is highly probable that the error did not
here—and bases its conclusions on the
contribute to the judgment.’” United
probable outcome of a hypothetical trial
States v. Davis, 183 F.3d 231, 255 (3d
where hypothetical witnesses are called.
47
See United States v. Gallego, 191 F.3d substitute evidence: The Daubert hearing
156, 164-65 & n.3 (2d Cir. 1999). This record discloses a wealth of testimony on
would not present an obstacle here, this point from credible and well-
however, because the putative substitute qualified experts. In fact, at the Daubert
testimony was actually given at the hearing the government asked each of
Daubert hearing and was subject there to five distinguished expert witnesses his
cross-examination by Mitchell, who had opinion of essentially the matters the
the same motive to attack the District Court judicially noticed. All five
government’s experts as he would have took the same position as the District
had at trial. Thus the Confrontation Court did in taking judicial notice. See
Clause would not, at all events, be supra page 8. Thus, this was not a case
offended by our harmless error analysis. where judicial notice replaced limited
See Crawford v. Washington, 124 S. Ct. and shaky evidence. Any additional
1354, 1374 (2004) (“Where testimonial authority the government drew by the
evidence is at issue, however, the Sixth Court’s taking judicial notice was, at
Amendment demands what the common most, marginal. Thus we conclude that,
law required: unavailability and a prior though error, the District Court’s taking
opportunity for cross-examination.”); cf. of judicial notice was harmless.
Fed. R. Evid. 804(b)(1) (permitting
introduction of hearsay under these
conditions). VI. Withholding of the NIJ Solicitation
Mitchell counters that the District Mitchell argued in his Fed. R. Crim.
Court’s declaration of judicial notice lent P. 33 motion that the government
an imprimatur of authority to the violated its obligations under Brady v.
government’s fingerprint case that no Maryland, 373 U.S. 83 (1963), by failing
amount of expert testimony could have to disclose the solicitation for fingerprint
replaced, and no amount of rebuttal validation studies which it ultimately
could have overcome. We acknowledge released to the public shortly after
that the consequences of a district court’s Mitchell was convicted. Several prongs
taking judicial notice of disputed facts must be met to establish a Brady
can be considerable, for the unique violation, but we need only concern
imprimatur of the district court can ourselves— as the District Court
render judicial notice of a disputed fact did—with Brady’s materiality prong.
not harmless, even when there is We agree with the District Court that,
cumulative (or substitute) evidence. But even if Mitchell had had the solicitation
we do not think the facts here support at trial, there was not a reasonable
that argument, principally because the probability that he would have been
government had not only substitute acquitted.
evidence, but almost overwhelming
48
A. Standard of Review and In evaluating a Brady claim, the
Applicable Law “touchstone on materiality is Kyles v
Whitley.” Id. at 1276. “[T]he materiality
We have explained that “[o]rdinarily
standard for Brady claims is met when
we review a district court’s ruling on a
‘the favorable evidence could reasonably
motion for new trial on the basis of
be taken to put the whole case in such a
newly discovered evidence for abuse of
different light as to undermine
discretion.” United States v. Perdomo,
confidence in the verdict.’” Id. (quoting
929 F.2d 967, 969 (3d Cir. 1991) (citing
Kyles, 514 U.S. 419, 435 (1995)). This a
Gov’t of V.I. v. Lima,
774 F.2d 1245 (3d
defendant must show by demonstrating a
Cir. 1985)). But “[b]ecause a Brady
“‘reasonable probability’ of a different
claim presents questions of law as well
result,” had the withheld evidence been
as questions of fact, we will conduct a de
available. Kyles, 514 U.S. at 434 (citing
novo review of the district court’s
United States v. Bagley, 473 U.S. 667,
conclusions of law as well as a ‘clearly
678 (1985)). This standard is relatively
erroneous’ review of any findings of fact
lenient; “[t]he question is not whether the
where appropriate.” Id. (citing Carter v.
defendant would more likely than not
Rafferty, 826 F.2d 1299, 1306 (3d Cir.
have received a different verdict with the
1987)).
evidence, but whether in its absence he
In Brady, the Supreme Court received a fair trial, understood as a trial
announced that “‘the suppression by the resulting in a verdict worthy of
prosecution of evidence favorable to an confidence.” Id.
accused upon request violates due
Two other questions of law bear on
process where the evidence is material
the somewhat unusual circumstances of
either to guilt or to punishment,
the alleged Brady violation in this case.
irrespective of the good faith or bad faith
First, assuming that the government
of the prosecution.’” Banks v. Dretke,
acted in bad faith to withhold publication
124 S. Ct. 1256, 1267 (2004) (quoting
of the solicitation, we must consider
Brady, 373 U.S. at 87). “[T]he three
how, if at all, the bad faith aspect affects
components or essential elements of a
the Brady calculus. We are deeply
Brady prosecutorial misconduct claim,”
discomforted by Mitchell’s
the Court recently reiterated, are: “‘The
contention— supported by Dr. Rau’s
evidence at issue must be favorable to
account of events, though contradicted
the accused, either because it is
by other witnesses—that a conspiracy
exculpatory, or because it is impeaching;
within the Department of Justice
that evidence must have been suppressed
intentionally delayed the release of the
by the State, either willfully or
solicitation until after Mitchell’s jury
inadvertantly; and prejudice must have
reached a verdict. Dr. Rau’s story, if
ensued.’” Id. at 1272 (quoting Strickler
true, would be a damning indictment of
v. Greene, 527 U.S. 263, 281-82 (1999)).
49
the ethics of those involved. for the court to consider in weighing the
materiality of the withheld evidence.
The District Court declined to reach
The District Court erred to the extent that
the issue of whether the government
it undertook its Brady materiality inquiry
suppressed the solicitation, and it made
without evaluating and incorporating the
neither a finding of fact nor even an
government’s alleged bad faith. In the
implicit credibility determination on the
next section we will consider the alleged
conflict between Dr. Rau’s account and
bad faith in making our own materiality
the testimony of the government’s
determination.
witnesses. Thus we have no factual
determination to which we may defer. The second question of law that we
But as a legal matter, the question of must address arises because the
good faith versus bad faith is a government proffered extensive evidence
distinction without a difference in the to rebut Mitchell’s contentions regarding
Brady context. Indeed, the Brady Court the solicitation. Therefore we must
itself said that its holding was determine whether we are to assess
“irrespective of the good faith or bad Brady materiality by reference to a
faith of the prosecution,” 373 U.S. at 87, hypothetical trial at which the withheld
and this was reaffirmed in United States evidence alone is introduced, or one at
v. Agurs,
427 U.S. 97, 110 (1972) (“If which both the withheld evidence and
the suppression of evidence results in reasonable rebuttal evidence are
constitutional error, it is because of the introduced. The Supreme Court has
character of the evidence, not the made clear that the Brady (or, in its
character of the prosecutor.”). Mitchell citations, Bagley) materiality
does not suggest, nor do we adopt, a rule determination displaces a harmless error
of per se materiality in the face of bad inquiry. See
Kyles, 514 U.S. at 435-36.
faith withholding by the prosecution. Thus, assuming that the Confrontation
Clause bears on this issue, see supra
Mitchell does, however, urge us to
page 47, its significance is the same.
adopt the position enunciated in United
States v. Jackson, 780 F.2d 1305 (7th In deference to the possible
Cir. 1986). There the Court of Appeals Confrontation Clause implications,
explained that the existence of bad faith absent an opportunity for cross-
on the part of the prosecution is examination of prosecution rebuttal
probative of materiality because it is evidence (which would satisfy
“doubtful that any prosecutor would in Crawford), we will undertake the Brady
bad faith act to suppress evidence unless materiality inquiry with reference only to
he or she believed it could affect the the evidence withheld, and not consider
outcome of the trial.”
Id. at 1311 n.4. the prosecution’s rebuttal. We note,
We agree that the existence of bad faith however, that the typical case will be the
on the part of the prosecution is a factor exception to this rule: Normally a Brady
50
claim will be assessed in light of an gave two reasons why the solicitation
evidentiary hearing—as was the case was not material under Brady: first, that
here—and the defendant will have an it would not have been admissible, and
opportunity for cross-examination at that second, that even had it been admitted,
hearing. Such cross-examination there was not a reasonable probability
satisfies Crawford, 124 S. Ct. at 1374, that the outcome of the trial would have
and thus would clearly be properly changed. On appeal, the government
considered in evaluating Brady’s does not defend the District Court’s first
materiality prong. Since Mitchell had the ground; the parties correctly recognize
opportunity for cross-examination in his that under Velasquez,
64 F.3d 844, the
new trial hearing, we will consider the solicitation would have been admissible
full record in determining whether there both at trial and at the Daubert hearing as
is a reasonable probability that the tending to undermine the government’s
solicitation would have changed the claim that latent fingerprint identification
outcome of the trial. is reliable.
B. Discussion Mitchell principally presses on appeal
that use of the solicitation at the trial
The first Brady prong (“favorable to
itself would have had a reasonable
the accused”) is met, for the parties do
probability of changing the verdict, but
not dispute that the existence of the
we will first consider whether the
solicitation is favorable to Mitchell
solicitation was material to the Daubert
(though just how favorable it is is very
ruling, since a Daubert ruling favorable
much in dispute). We do not reach the
to Mitchell would very likely have
question whether the second prong
changed the outcome at trial. Based on
(“suppressed by the State”)—which we
our thorough review of the admissibility
have held requires that the prosecution
under Daubert of the government’s latent
have “actual knowledge or cause to
fingerprint identification evidence, see
know” of the undisclosed material, see
supra Part III, it is clear that the Daubert
United States v. Veksler,
62 F.3d 544,
calculus does not materially change in
550 (3d Cir. 1995)—is met by virtue of
light of the solicitation.
either (1) the involvement of government
experts in the solicitation’s preparation, Mitchell’s main contention requires
or (2) the fact that the NIJ and the United that we consider whether the absence of
States Attorney for the Eastern District of the solicitation at trial “undermine[s]
Pennsylvania are both under the United confidence in the verdict.” Kyles, 514
States Department of Justice. Therefore, U.S. at 435. We assume, but do not
we confine our discussion to the third decide, that the solicitation would have
prong (“prejudice must have ensued”). been admissible at trial for its contents as
a non-hearsay admission of a party
As we have noted, the District Court
opponent (the government) under Fed. R.
51
Evid. 801(d)(2), and would have been The government’s bad faith, if any, in
admissible as impeachment evidence withholding the solicitation does not
under Fed. R. Evid. 801(d)(1)(A) against appreciably alter this because intentional
Agent Meagher, who participated in the withholding in these circumstances is
preparation of the solicitation. consistent not only with a guilty mind but
also with a concern on the government’s
Mitchell hypothesizes that “[t]he jury
part that the solicitation would be
most probably would have been stunned
misunderstood. Moreover, the
to learn . . . that the government and its
solicitation would have been only a small
fingerprint experts have ‘invited’. . .
part of a large mosaic of evidence put on
‘basic research’ to determine whether
at trial about the reliability and operation
fingerprints are truly unique and testing
of latent fingerprint identification. In our
to determine whether fingerprint
view, the impact of the solicitation would
examiners can produce correct results
have been dwarfed by other evidence
with acceptable error rates.” Reply Br. at
favorable to the government.
39. If the solicitation were to be taken in
a vacuum, this might be true. But the Relatedly, Mitchell contends that the
government witnesses at the new trial solicitation would have been powerful
hearing explained—and the District impeachment evidence against Agent
Court found as a factual matter—that this Meagher, who was the government’s
solicitation (like other NIJ solicitations) principal expert witness at trial, because
is not “meant to set forth the state of the Meagher was involved in the drafting of
current research, but rather is only the solicitation. In ruling on M itchell’s
intended to set forth sufficient Rule 33 motion, the District Court
information such that researchers can credited “the testimony of the
apply for funds to perform further Government’s witnesses at the
research.” App. 12a. Apart from direct Solicitation Hearing that the Solicitation
testimony from several government does not change their testimony
witnesses familiar with the NIJ regarding fingerprint technology.” App.
solicitation process, there was also 12a-13a. In other words, the District
evidence that the NIJ routinely issues Court discounted the impeachment value
solicitations for research in other well- of the solicitation even after having seen
established fields of forensic expertise, Mitchell’s actual cross-examination of
such as DNA identification. Thus the the government’s experts both with the
District Court’s finding regarding the solicitation (at the new trial hearing) and
purpose of the solicitation is not clearly without it (at trial). The District Court
erroneous. In that light, we conclude that had the best vantage point, at both
a reasonable jury would not conclude proceedings, to assess the government’s
that the solicitation was the smoking gun witnesses (especially Agent Meagher),
that Mitchell makes it out to be. and we defer to its finding. See United
52
States v. Perez, 280 F.3d 318 (3d Cir. objections are required to preserve issues
2002). for appeal); United States v. Gomez-
Norena, 908 F.2d 497, 500 (9th Cir.
In sum, the solicitation does not
1990) (holding that a party fails to
undermine our confidence in the verdict
preserve an issue for appeal by making
from a substantive or impeachment
an incorrect specific objection).
vantage point. We conclude that it was
not material, and therefore reject Accordingly, our review is for plain
Mitchell’s Brady claim. error only. See United States v. Brink, 39
F.3d 419, 425 (3d Cir. 1994). To
establish plain error, a defendant must
VII. Admission of Alleged prove that there is “(1) ‘error,’ (2) that is
Prior Consistent Statements ‘plain,’ and (3) that ‘affects substantial
rights.’ If all three conditions are met, an
Mitchell’s final objection is to what
appellate court may then exercise its
he regards as the admission of certain
discretion to notice a forfeited error, but
prior consistent statements by the
only if (4) the error ‘seriously affects the
government’s key lay witness, Kim
fairness, integrity, or public reputation of
Chester. Mitchell contends that,
judicial proceedings.’” Johnson v.
following his attack on Chester’s
United States, 520 U.S. 461, 467 (1997)
credibility during cross-examination, the
(citations omitted).
government on redirect sought to
rehabilitate her by introducing prior The government’s redirect
consistent statements. Mitchell’s examination of Ms. Chester elicited three
argument is that the District Court erred things. First, she had met with FBI
in letting the prosecution proceed as it agents and given them a statement.
did because those statements were Second, that statement included
hearsay not within any hearsay discussions of Mitchell, Bookie, and T’s
exception. We conclude that, in fact, no activities. Third, she had testified before
hearsay was introduced, and therefore regarding their activities. (This
Mitchell’s objection fails. testimony was in Mitchell’s first trial,
though the jury, of course, did not learn
Although counsel for Mitchell
this.) The examination did not establish
objected at pertinent points during the
the contents of those prior statements,
redirect examination of Chester on
merely their existence and subject matter.
various specific grounds, no hearsay
The prosecution used the existence of
objection was made. Thus Mitchell has
these prior statements during closing
failed to preserve this objection for
arguments to bolster Chester’s credibility
appeal. See Fed. R. Evid. 103(a)(1);
with a “dog that did not bark” argument.
United States v. Sandini, 803 F.2d 123,
That is, the prosecutor offered the jury
126 (3d Cir. 1986) (holding that specific
the line of reasoning that if these
53
statements existed, and they were statements were introduced. Rule
harmful to Ms. Chester’s credibility, then 801(c), which defines “hearsay,”
Mitchell surely would have introduced concerns only “statements,” and so the
them. The fact that he did not, the first question to ask is whether the
prosecutor argued, must mean that they government elicited a statement.
were not inconsistent, and that Ms.
“A ‘statement’ is (1) an oral or
Chester was in fact a reliable and
written assertion or (2) nonverbal
consistent witness.31
conduct of a person, if it is intended by
Mitchell claims that the government the person as an assertion.” Fed. R.
introduced Chester’s prior consistent Evid. 801(a). Nonverbal conduct is
statements (to the FBI and at Mitchell’s plainly not at issue. Chester’s prior
first trial) to rehabilitate her in the wake statements may be oral or written
of attacks on her credibility during cross- assertions, but they were not actually
examination. While the government’s introduced. Testimony about the
motive was to rehabilitate Ms. Chester, existence of a statement is not itself a
we do not agree that any hearsay “statement.” Furthermore, to the extent
that Chester testified that certain matters
were discussed on prior occasions, that
31
The relevant portion from the testimony was not “offered . . . to prove
prosecutor’s closing argument was: the truth of the matter asserted,” Fed. R.
Indeed, you heard, [Ms. Evid. 801(c), and thus not inadmissible
Chester] had testified in a prior under Rule 802.32 Thus the District
proceeding. Did you hear counsel
take the notes from that and say,
32
well, isn’t it true you said In fact, the entire situation is
something different before? No. analogous to the typical unremarkable
I suggest to you that the reason nonhearsay use of out-of-court
was because she didn’t. statements. For example, testimony that
Did he take that statement that “I heard another tenant in my building
the agent took from her, the seven complain to the landlord about a
page statement and say, now dangerous condition on the stairs” is
didn’t you say something admissible to prove that the landlord had
different? notice (but not that the stairs were in a
*** dangerous condition). In that case,
You didn’t hear [defense testimony that someone spoke to the
counsel] try to impeach her with landlord does not involve any
the statement that she had given to “statement” at all, and the subject matter
the agents back in December of of the conversation is not “offered . . . to
1991. prove the truth of the matter asserted,”
App. 1991a, 1994a. Fed. R. Evid. 801(c).
54
Court committed no error. APPENDIX: Colloquies with the District
Court Regarding Admissibility of
Moreover, even if Chester’s
Mitchell’s Proposed Experts.
testimony were hearsay, we would not
reverse Mitchell’s conviction, because With the exception of identifying the
the third prong of the Johnson plain error prosecutor and defense counsel, the
test is not met. The “substantial right” following transcripts are verbatim the
implicated in erroneous admission of transcript supplied in this Court. We
hearsay in a criminal trial is the Sixth have not attempted to repunctuate it, but
Amendment Confrontation Clause. See, have noted possible errors in
e.g., Crawford, 124 S. Ct. at 1374. The transcription or in speaking. What
Clause has little weight when the follows is the District Court’s colloquy
declarant is actually on the stand, as was with counsel following its ruling on the
the case here. Moreover, the whole issue admissibility of the government’s expert
was collateral (it went only to testimony:
credibility), and Mitchell had done a
THE COURT: Counsel, the matter
relatively unconvincing job of
presently pending before the
undermining Ms. Chester’s credibility on
Court is in reference to the
cross-examination. In our view,
defense motion to exclude the
rehabilitated or otherwise, the jury would
Government’s fingerprint
have given the same weight to Ms.
identification evidence and based
Chester’s testimony.
on the Daubert hearing and also
Kumho, this court denies the
defendant’s motion and pursuant
VIII. Conclusion
thereto, this court is not going to
The judgment of the District Court make a determination as to the
will be affirmed. particular area of scientific
knowledge and technical or
specialized knowledge. We are
going to grant the motion with
respect to the expert pursuant to
Rule 702 and as stated in Kumho,
not only would it be difficult to
prove, but almost impossible for a
judge to administer evidentiary
rules under which a gatekeeper
obligation depending upon a
distinction between scientific
knowledge and technical or other
specialized knowledge.
55
Since there is no clear line this case, as far as the
dividing the one from the others Daubert hearing will remain intact
and no convincing need to make with these proceedings and will
such distinction, therefore, this go with it through the life of this
court does not feel compelled by case.
any case authority to make that
***
distinction in the case before us.
I believe, ultimately, it will be
***
a factual determination for the
We find that the Government’s jury to make as to whether or not
expert witness at this juncture there’s been a positive
appears it’s Duane Johnson [sic, identification pursuant to
“Wilbur Johnson”?], an FBI latent whatever standards are applicable
fingerprint examiner who testified and make that determination, as
first in the previous trial and those opposed to this court taking
other latent fingeprint experts that judicial notice of that.
testified in the Daubert hearing
***
are capable of testifying in these
proceedings and in that regard, I In that regard, when I am
am not going to limit the defense speaking about the defense
from calling latent fingerprint experts, out of the three that
experts to testify as to the ability testified—I say “experts” because
not to identify or make an they called a paralegal to testify,
identification from the but out of the three, the only one
fingerprints and I am also going to that appears close, based on the
allow the defense to call any latent testimony at the Daubert hearing,
fingerprint expert who indicates would be Dr. David A. Stoney and
that fingerprints are not reliable I say “close” because a vast
sources of identification. majority of his testimony dealt
with the scientific aspect as
Only for that limited purpose
opposed to the latent fingerprint
and I am going to exclude
reliability and his experience from
evidence as to whether or not it’s
that background.
scientific, technical or whatever.
It has no relevance before this jury All right, you can make your
here. The question is whether or decisions and at that point in time
not an identification can be made that you decide to make or attempt
by examination of to call a witness, we will have an
fingerprints—latent offer of proof and I will entertain
fingerprints—and the record of it and make a determination based
56
on the offer of proof as to clarification. I take it we would
whether or not the witness will not be permitted to call Professor
be allowed to testify as with Starrs?
any witness.
THE COURT: Looking at his
*** testimony from the Daubert
hearing, he would not qualify
THE PROSECUTION: Just a
under my analysis based on
clarification, your Honor.
Rodriguez?
You first mentioned that the
THE PROSECUTION: The Eleventh
defense experts—did I understand
Circuit case is U.S. versus Paul.
the court correctly with respect to
the sufficiency of the latent THE COURT: I am talking about the
fingerprints in this particular Third Circuit case, Vasquez. [sic,
case? “Velasquez”?]
THE COURT: Yes. THE COURT: Anything further?
THE PROSECUTION: Okay and that THE DEFENSE: No, your Honor, not
is likewise— on this point.
THE COURT: Such as some of the App. 1029a-1034a.
witnesses that were used to look at
Nothing further appears in the record
these latents throughout the
on the issue of defense experts until the
United States.
morning of jury voir dire, at which the
If they were to call that Court had the following colloquy with
fingerprint expert and that counsel:
fingerprint expert says, “There is
THE DEFENSE: . . . And, in addition,
no way I can make a positive
your Honor, I would like to state on
identification from that latent
the record, to clarify my
fingerprint,” that’s relevant for the
understanding of this Court’s pretrial
purpose of these proceedings.
ruling, I discussed it with the
THE PROSECUTION: I wanted to government, I think we are in
clarify we were talking about agreement as to what the Court’s
these latents versus the issue of ruling was. In some respects it was
latents in general. not clear initially to me. I want, for
appellate purposes to put it on the
THE COURT: No, I am not getting
record.
into the issue of latents in general.
That’s been established. THE COURT: What’s that in
reference to, what ruling?
THE DEFENSE: One quick point of
57
THE DEFENSE: Referring to your heard at the hearing, if the Court
ruling as to the admissibility or had so ruled.
the partial admissibility of the
***
fingerprint examiners, in light of
the Daubert hearing, entertained THE PROSECUTION: I want one
by the Court. clarification.
THE COURT: When was the ***
Daubert hearing?
THE PROSECUTION: You also told
THE DEFENSE: It was over the them that they could call any
summer, the exact dates, I don’t qualified expert, meaning in the
know. The Court’s ruling was field of fingerprints that would
announced from the bench on testify that fingerprints are not
September 13th of last year. reliable sources of identification.
*** I mean there’s a slight
difference. I think the Court ruled
THE COURT: What specifically did
with respect to two of the
you have problems
witnesses on the 13th, that they
understanding?
would be excluded. You did not
THE DEFENSE: Your Honor, what preclude Stoney or exclude him in
my understanding of this Court’s all respects then but you had made
ruling, the defense may call any a ruling, you didn’t—he had not
witness or examiners which I’m been fleshed out as an expert in
prepared to do, who formed an fingerprints either. All I’m
opinion as to the latent prints at saying, that the Court let the
issue. But, I further understood defense try to find experts in the
the Court to say, I was precluded field that would say that the
from introducing any evidence by fingerprints are not reliable
individuals who are of the opinion sources of identification.
that the fingerprint field is of
THE COURT: I don’t have that
questionable reliability, given the
transcript before me.
lack of testing, the reasons that I
have articulated at the Daubert THE PROSECUTION: I can hand up
proceeding. my copy.
THE COURT: Yes. ***
THE DEFENSE: I would just proffer, THE COURT: Let me refresh my
your Honor, that I would call the recollection as to this whole
same three people that the Court hearing, counsel. I’m somewhat
58
at a disadvantage since I likewise—
thought this was done. Let me
The Court: Such as some of the
refresh.
witnesses that were used to look at
Specifically, on page four, I these latents throughout the
indicated: “I am not going to limit United States.
the defense from calling latent
If they were to call that
fingerprint experts to testify as to
fingerprint expert and that
the ability not to identify or make
fingerprint expert says, there is no
an identification from the
way I can make a positive
fingerprints and I am also going to
identification from that
allow the defense to call any latent
fingerprint, that’s relevant for the
fingerprint expert who indicates
purpose of these proceedings.”
that fingerprints are not reliable
sources of identification.” THE COURT: That’s what I said, any
latent fingerprint expert, who can
***
look at these prints and say I can’t
THE COURT: Then I said: “Only for make an identification or I can
that limited purpose and I am make an identification.
going to exclude evidence as to
THE DEFENSE: As to these
whether or not it’s scientific,
particular prints at issue, that’s it.
technical or whatever.”
THE COURT: That’s it, the only
***
thing relevant for these
THE DEFENSE: The government proceedings, right.
before that said on page six, your
THE DEFENSE: Over my objection,
Honor, in the middle of the page,
the Court ruled.
line 18.
THE COURT: Based on the facts that
“The Prosecution: Just a
I made that ruling.
clarification, your Honor.
THE DEFENSE: Yes.
You first mentioned that the
defense experts—did I understand THE COURT: Anything further?
the Court correctly with respect to
THE PROSECUTION: Just again for
the sufficiency of the latent
clarification, your Honor, not
fingerprints in this particular
clarification but the statement, so I
case?
understand on page four, you also
The Court: Yes. said that they can call any
qualified expert in the field that
The Prosecution: Okay and that is
would testify that fingerprints are
59
not reliable sources of identification, whether it is Mr.
information, not limited to those Mitchell’s fingerprints or anyone
latents, but if they can get a else’s fingerprints, based on 10,
qualified expert in the fingerprint 20, 15, you are permitted to call
field to come in here to say, well, that expert.
I’m a qualified expert in
***
fingerprints. Fingerprint
identification is not a reliable THE DEFENSE: No one to present
source of identification, they have the testimony as your Honor
the option and the ability to do outlined.
that?
THE COURT: I don’t know that.
THE DEFENSE: That’s what we
THE DEFENSE: I’m representing
would have done with Dr. Stoney,
that.
we did at the hearing, that he has
the opinion that the field is of THE COURT: That’s what you are
questionable reliability. representing to the Court.
THE COURT: He is going to say, a THE DEFENSE: There would, yes,
scientific and technical sir, there would be Dr. Stoney’s
determination? testimony, that there is—it is of
questionable reliability because
THE DEFENSE: That the Court ruled
there’s no testing done in the
on.
field. Not to be redundant, similar
THE COURT: That the Court ruled to what he testified to.
on. That’s fine, that’s complete.
THE COURT: The record will
But, in that regard, though, if you
remain as his testimony that you
have a latent fingerprint expert
presented at these proceedings.
who will testify, an expert or a
Whether or not you call him in
person in latent fingerprints can’t
reference to latent fingerprint
make a positive identification with
identification is your call.
10 points, 15 points, 40 points,
then you are permitted to—you THE DEFENSE: Right. That would
can call that expert to testify, it be similar to the other two people
doesn’t have to do with just his that I would call.
particular points, that one can find
THE COURT: Very well.
but in general, if you have an
expert, a latent fingerprint expert THE DEFENSE: Simon, Cummins,
that can testify that a person Professor Starr.
cannot, a person in the field, an
THE COURT: The other individuals
expert in the field cannot make an
60
that testified at the Daubert
hearing?
THE DEFENSE: Yes.
App. 1065a-1074a.
61
