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October 26, 2007

Additional Thoughts on Maryland v. Rose (Fingerprints)

Having just read the opinion in Maryland v. Rose, my initial reaction is an odd mixture of yawns and gasps.  On the unreliability of fingerprints, the opinion is in many ways completely unremarkable.  The arguments offered against fingerprints have now been around for quite some time.  What is remarkable is how long it has taken for courts to begin acknowledging the problems with fingerprints.

The broader aspects of the opinion, however, are arguably more fascinating.  First, the judge invokes the "death is different" concept almost like an incantation, and then says nothing more about it.  Is the judge suggesting that the holding be limited to death penalty cases only?  While one could develop a theory by which the constitution influences the interpretation of Rule 702 in certain contexts, that conclusion is not immediately obvious.   In addition, it seems that the criticisms of fingerprints are sufficiently serious that the problem is not just confined to death cases.

Second, I am astonished at how the court almost cavalierly sidesteps the issue of being in a Frye jurisdiction and subject to a "general acceptance" standard.  While I have previously argued that Frye and Daubert operate similarly in practice, never did I expect that an opinion from a Frye jurisdiction would feel so extraordinarily "Daubertesque." 

Finally, the opinion is a testament to how influential the Daubert criteria and mindset have become.  The court emphasizes the use of objective standards, testing, and error rates.  One gets the sense that expert intuition was summarily shown the door. 


October 26, 2007 | Permalink


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The opinion feels so "Daubertesque" because it it essentially consists of Judge Michael's dissenting opinion in United States v. Crisp, 324 F.3d (4th Cir. 2003), which considered the admissibility of fingerprint analysis under Daubert. I count 9 citations to Michael's dissent in Souder's opinion, including several block quotes.

Posted by: Colin Miller | Oct 27, 2007 9:35:42 AM

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