United States v. Mitchell

• Court: Court of Appeals for the Third Circuit
• Decided: April 29, 2004
• Docket: 02-2859
• Status: Published

Opinion

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USA v. Mitchell Precedential or Non-Precedential: Precedential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

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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 Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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 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.