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Senior U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania has reversed his landmark decision in United States v. Plaza-Llera that barred fingerprint experts from telling juries that two fingerprints are a “match” because the science they rely on does not meet the U.S. Supreme Court’s Daubert test. In his earlier, January decision, Pollak found that the science of fingerprint examination has never been subjected to the rigors of scientific testing and that the standards for declaring a match were not legally reliable because they were too subjective. Now, in a major victory for the government, Pollak has handed down a 60-page opinion in which he concluded that his first analysis was flawed because fingerprint identification isn’t a science at all, but rather a field of “technical” knowledge that deserves a different test for reliability in court. As a result, Pollak found that the Daubert test, which takes its name from the 1993 decision in Daubert v. Merrell Dow, must be tailored to incorporate the Supreme Court’s extension of the test to non-scientific experts in its 1999 decision in Kumho Tire Co. v. Carmichael. “The fact that fingerprint specialists are not ‘scientists,’ and hence that the forensic journals in which their writings on fingerprint identification appear are not ‘scientific’ journals in Daubert‘s peer review sense, does not seem to me to militate against the utility of the identification procedures employed by fingerprint specialists,” Pollak wrote. In the January decision, Pollak was skeptical about the process fingerprint examiners employ — known as “ridgeology” or ACE-V, an acronym for “analysis,” “comparison,” “evaluation” and “verification.” Prosecutors argued that “the ACE-V process and the experts’ conclusions have been tested empirically over a period of 100 years.” But Pollak found in January that testing the process in court was no substitute for true scientific testing. He also noted that the standards for declaring a match vary from state to state and country to country and that while some jurisdictions require a minimum number of so-called Galton points because a match can be declared, the FBI requires no minimum number. By contrast, Pollak noted in January that in the United Kingdom, where fingerprint analysis was invented, examiners must identify 16 Galton points and Australia demands at least 12 points before a match can be declared. The apparently wide differences in the standards caused Pollak to conclude in January that there was “no uniformly accepted qualifying standards for fingerprint examiners.” Now Pollak has found that he got some of the facts wrong because his ruling was premised almost entirely on the factual record of hearings before U.S. District Judge J. Curtis Joyner on the same issue in 1999. After holding a three-day hearing at which five witnesses testified and after performing some of his own research, Pollak found that the British authorities are poised to adopt the same standards as the FBI by eliminating the requirement of a minimum number of Galton points. “In sum, I conclude that the minimum-Galton-point issue discussed in the Jan. 7 opinion is now moot. Though a number of other countries may still observe Galton point minima, the fact that England has, after many years of close study, moved to the position which prevails in Canada and which the FBI has long subscribed to, leads me to conclude that there is sufficient uniformity within the principal common law jurisdictions to satisfy Daubert,” Pollak wrote. “I am now persuaded that the standards which control the opining of a competent fingerprint examiner are sufficiently widely agreed upon to satisfy Daubert‘s requirements.” Pollak also retreated from his criticism of the “subjective” nature of a fingerprint examiner’s ultimate conclusion that two fingerprints “match.” While Daubert‘s science-focused analysis is less tolerant of subjective conclusions, Pollak found that the technical experts discussed in Kumho Tire will often be making subjective conclusions that may be perfectly valid if they conform to the standards of their expertise. “There are many situations in which an expert’s manifestly subjective opinion … is regarded as admissible evidence in an American courtroom,” Pollak wrote. When an art appraiser declares a value for a piece of art or when a market researcher opines on an advertising campaign’s effect on consumers, the opinions are grounded in subjective judgments but are nonetheless admissible expert opinions, Pollak found. In comparison, Pollak said, “the subjective ingredients of opinion testimony presented by a competent fingerprint examiner appear to be of substantially more restricted compass.”

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