A Trial court in Maryland has refused to allow admission of certain fingerprint evidence finding that it fails FRYE. Specifically, the court found that the ACE-V method of making fingerprint ‘matches’, the most commonly used method, did not rest on a sufficiently reliable factual foundation to allow its admission.
In State v. Bryan Rose, the State sought to use certain latent fingerprints identified as Mr. Rose’s using the ACE-V method. The Court rejected as insufficient each part of the A-C-E, V, acronym.
The A in ACE-V stands for ‘analysis.’ The Maryland court faulted the methodology as lacking any real objective analysis whatsoever. Among the flaws in the so-called analysis, “The ACE-V methodology does not require the examiner to create a written record of the analysis even though preparing a written analysis prior to Comparison promotes objectivity and removes the opportunity for anyone to suggest that one is seeing friction ridge details where none exist.”
The C in ACE V stands for ‘comparison.’ The Maryland court noted that the so-called comparison is completely subjective and that there are no “standards or protocols that a comparison be conducted on a particular scale.”
The E in ACE-V stands for ‘evaluation.’ The Maryland court correctly noted that in terms of a “match”, “There is no scientific basis for requiring that a predetermined number of predetermined number of corresponding friction ridge details be present to effectuate [a match].”
The V in ACE-V stands for ‘verification.’ The Maryland court described the claim that the ‘verification’ was ‘independent’ as “not credible.” First, “verifiers” consult with the first examiners. Moreover, verifiers are told of the first identification. The Court found that under any reasonable definition, the verification is a subjective, tainted process, skewed with bias.
The court rejected the state’s pleas to admit the evidence. The State’s argument was essentially, “we have been doing it this way all these years, so it must be scientific enough to be admissible.” The Court rejected that argument stating bluntly “for many centuries, perhaps millennia, humans though that the earth was flat. The idea has a certain intuitive appeal. Indeed, there still exists a Flat Erath Society for people who cling to the idea that the Earth is not an orb. But science has proved that the Earth is not flat, and it is the type of fact of which a court can take judicial notice.” The court stated “the long history of use does not itself establish its reliability.”
In rejecting the State, the court cited a similar case from the Florida Supreme Court which challenged the admission of expert testimony to the effect that the defendant’s knife was the one that made a certain wound to the exclusion of all other knives in the world. The Florida Supreme Court had rejected this dubious scientific opinion, finding problems almost identical with the ACE-V method of fingerprint examination. The Maryland court, echoing the Florida Supreme Court, found the flaws in the science included:
1. The determination was subjective;
2. there are no minimum number of matching prints or other objective criteria;
3. no notes are required so there is no documentation of the expert’s work;
4. matches are made with absolute certainty, exceeding the certainty of DNA testing;
5. no testing or verification by independent means;
6. no meaningful peer review;
7. no error rate quantified;
The ACE-V method suffered from ALL of these flaws and therefore could not be admitted against defendant Bryan Rose.
What does this all mean? As defense counsel, we should be challenging the admission of every fingerprint analysis. The science is not science at all. The Maryland court focused on the perceived, and indeed attested to, infallibility of the ACE-V method. Get you fingerprint examiner to admit the same things: (a) no objective standards for declaring a “match”, (b) no independent review of matches, and (c) no error rate (i.e. the test is infallible).
Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. He has been in private practice with his own firm for six years. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or firstname.lastname@example.org.
Mr. Venie's website can be found at http://www.anothernotguilty.com