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In hearings that began Monday, federal prosecutors are urging Senior U.S. District Judge Louis H. Pollak to reconsider a landmark opinion he handed down in January that said fingerprint experts cannot testify that two fingerprints are a “match” because the science they rely on does not meet the U.S. Supreme Court’s Daubert test. Assistant U.S. Attorney Thomas R. Perricone said Monday that the government would present new evidence that shows fingerprint examiners are routinely tested to ensure that they are highly accurate in linking fingerprints to an individual criminal suspect. “These tests — as limited as they are, as imperfect as they are — should give the court comfort that this kind of evidence should be admitted,” Perricone said. In his Jan. 7 decision in United States v. Plaza-Llera, Pollak, of the Eastern District of Pennsylvania,stopped short of tossing out all fingerprint testimony, saying such a ruling would be “unwarrantably heavy-handed.” Instead, Pollak sided with the government by taking “judicial notice” of the fact that fingerprints are both “unique” and “permanent.” He then ruled that the experts on both sides can testify about how the prints were obtained and the similarities and differences between them, but are barred from expressing any opinion about whether the prints are a match. Pollak found that the science behind fingerprint testimony fails the Daubert test because it has never been subjected to the rigors of scientific review. “Adversarial testing in court is not what the Supreme Court meant when it discussed testing as an admissibility factor,” Pollak wrote. “It makes sense to rely on scientific testing, rather than ‘adversarial’ courtroom testing, because to rely on the latter would be to vitiate the gatekeeping role of federal trial judges. … If ‘adversarial’ testing were the benchmark — that is if the validity of a technique were submitted to the jury in each instance — then the preliminary role of the judge in determining the scientific validity of a technique would never come into play,” he wrote. In its motion for reconsideration, the government argued that Pollak’s decision is “at odds with Rule 702 of the Federal Rules of Evidence.” Assistant U.S. Attorneys Robert A. Zauzmer, Thomas R. Perricone, Paul A. Sarmousakis and David H. Resnicoff argue that Pollak based his ruling “on a view that the fingerprint identification method employed by the FBI has not been shown to be sufficiently reliable to permit its use as the basis of an expert’s opinion.” That conclusion, they argued, “is not only incorrect factually, but rests on an apparent misinterpretation of the ‘reliability’ requirement, and of the liberal standard of admissibility of expert opinion under Rule 702.” In Daubert, the prosecution team argues, the Supreme Court explained the reliability requirement as providing that an expert’s opinion must be based on “good grounds” or “more than subjective belief or unsupported speculation.” The 3rd Circuit, they said, has since held that the Daubert standard “is not that high” and contemplates the introduction of expert opinion without a showing that the opinion is correct or that alternative opinions are implausible. They also argue that the most recent Advisory Committee notes to Rule 702 “affirm that under the rule even an expert opinion ‘not rely[ing] on anything like a scientific method’ may be admissible, if ‘it is properly grounded, well-reasoned, and not speculative.’” As a result, they argue, when presenting fingerprint experts, the government “need only show that the testimony is of sufficient reliability to allow the jury to consider it and weigh it against competing opinions.” The FBI’s methods of performing fingerprint examination, they argue, “is the paradigmatic example of ‘good grounds’ on which an expert may rely — it rests on a painstaking comparison of unique fingerprint characteristics; its methodology is grounded in over 100 years of academic and practical research; it has been proven accurate on countless occasions; it is universally accepted throughout the law enforcement and civil communities; and it is subject to constant testing and review.” The prosecutors argue that the 3rd Circuit has repeatedly allowed expert opinions on less substantial grounds. “Most notably, in United States v. Velasquez, the [3rd Circuit] held that the testimony of a handwriting examiner, who follows a comparative analysis similar in concept to that used by fingerprint examiners, is admissible under Daubert, as is the countervailing testimony of a critic of the standards employed by handwriting examiners,” they wrote. Pollak’s ruling, they argue, broke with that precedent and “appears to apply a higher reliability standard, suggesting that an opinion based on a scientific or technical method may not be admitted absent a showing that the method is unerringly or nearly always correct.” The prosecutors also complained that Pollak “focused on the fact that a fingerprint examiner’s final opinion represents a subjective judgment following his or her trained study of pertinent data, concluding that the opinion therefore does not rest on clear standards.” Instead, they said, the evidence shows that “the examiners follow clear standards in gathering and comparing the pertinent data, and then apply their expertise to reach a conclusion regarding the fingerprint comparison. That is the hallmark of permissible expert testimony; the law is clear that a subjective opinion is the essence of testimony under Rule 702, when it is based on expertise and the performance of a reliable method.” If Pollak’s decision is left undisturbed, they argue, it could have “grave consequences” since it would deprive the government of “vital evidence” in the Plaza-Llera case that “directly links defendants to heinous murders.” They also argue that it would “jeopardize the utility of a sound and proven method of identification in countless prosecutions of criminal activity, using a discipline which surely meets the Rule 702 reliability test.” Defense lawyers filed a joint brief in response to the government that urged Pollak to hold his ground. “The government contends, in no uncertain terms, that this court’s opinion … is profoundly mistaken,” Assistant Federal Defender Robert Epstein wrote in a brief joined by attorneys Jules Epstein of Philadelphia’s Kairys, Rudovsky, Epstein, & Messing; Timothy Sullivan of Sullivan & Sullivan; L. Felipe Restrepo of Philadelphia’s Krasner & Restrepo; and sole practitioners Gerald A. Stein, Bernard Siegel and Michael Giampetro. “The government’s memorandum, however, provides scant support for these arguments beyond the government’s own rhetoric and its extremely slanted reading of this court’s opinion and the relevant case law,” Epstein wrote. Instead, Epstein argues, Pollak’s ruling “stands as a model of what a proper Daubert analysis should be.” Challenging the government’s proposed new evidence, Epstein argues that “the FBI’s internal testing hardly constitutes a substitute for the scientific validation studies that the government has already admitted are needed if the fingerprint field is ever to truly satisfy Daubert.”

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