EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, October 24, 2007

The Myth of Fingerprints, Part 2: Maryland Judge Primarily (and Wrongfully) Relies on Dissenting Opinion in Crisp case

I have now read the opinion of Judge Souder concluding that fingerprint analysis fails the Frye test for admissibility.  It seems to me that the vast majority of Souder's analysis comes from the dissenting opinion in United States v. Crisp, 324 F.3d (4th Cir. 2003).  Let's start with the majority opinion in the Crisp case.

Crisp was convicted of multiple crimes in connection with an armed bank robbery in Durham, North Carolina.  He then appealed, claiming that (1) expert handwriting analysis and (2) forensic fingerprint analysis was inadmissible because it failed to satisfy the test laid out in Daubert v. Merrill Dow Pharmaceuticals, Inc.  The majority concluded that both forms of evidence were admissible under Daubert, which requires that expert evidence be "the product of reliable principles and methods" or otherwise reliable.

Judge Michael dissented, arguing that the prosecution had not proven that the two types of analyses were reliable under Daubert.  Judge Michael specifically noted, "I am not suggesting that fingerprint and handwriting evidence cannot be shown to satisfy Daubert.  I am only making the point that the government did not establish in Crisp's case that this evidence is reliable. "

Judge Michael noted that simply because these forms of expert evidence were admissible under Frye did not automatically mean that they were admissible under "the more exacting analysis now required" under Daubert, which requires that expert evidence be "the product of reliable principles and methods" or otherwise reliable.  The government needed to present evidence that fingerprint analyses were reliable, and it did not do so in Crisp.  Judge Michael then proceeded to apply Daubert's more exacting analysis and find that the government had not proven that fingerprint and handwriting analyses satisfied the Daubert test.

Ostensibly, however, Judge Michael found that the government later did establish that fingerprint analyses satisfy Daubert, as he was part of the three judge panel in the per curiam deicsion in United States v. Gray, 85 Fed.Appx. 908 (4th Cir. 2004), which found that fingerprint analyses are admissible under Daubert.

Now, let's look at Judge Souder's opinion.  The bulk of her opinion consists of cites to Judge Michael's dissenting opinion, where he questions the reliability of fingerprint analyses.  Then, in the next sentence after one of these citations, she makes the assertion, without any authority, that the Frye standard is more stringent than the Daubert standard.  This argument directly contradicts with Judge Michael's argument that Daubert's test is more stringent than Frye's test. 

So, let's break down Judge Souder's opinion.  She disagrees with the majority opinion in Crisp.  She disagrees with Judge Michael's dissenting opinion in Crisp to the extent that it held that the Daubert test is stricter than the Frye test.  Furthermore, she disagrees with Judge Michael's decision in Crisp to the extent that it implictly ackowledged that fingerprint analyses were admissible under Frye.  And yet, Judge Michael's dissent in Crisp forms the centerpiece of her opinion.  Simply put, her opinion is nonsensical.

Here is a PDF of the judge's decision.

UPDATE:  A reader notes that Daubert can be applied more or less stringently than Frye.  This is indeed correct, and some courts have in fact referred to Frye as a more rigorous test. See, e.g., Grant v. Boccia, 137 P.3d 176, 183 (Wash.App. Div. 3 2006).  I wanted to clarify that my point was not that Judge Souder was acting nonsensically in holding that Frye was more stringent than Daubert or in citing to the portions of the Crisp dissent discussing the (un)reliability of fingerprint analyses.  My point was that Souder acted nonsensically in cherrypicking certain portions of Judge Michael's dissent while (a) failing to mention his overall conclusions, which contradict her conclusion, and (b) including her claim about Frye being more stringent than Daubert in the middle of these citations without noting that her claim directly contradicts Judge Michael's comparison of the two tests.



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