Fingerprint identification evidence has helped shape thousands of criminal cases in America. For over a century, the practice of “matching” a crime scene print to an inked suspect print, known as friction ridge analysis, has gained universal acceptance. Proponents of fingerprint identification make three crucial claims: (1) “every individual possesses a unique and permanent set of fingerprints;” (2) fingerprint examiners can identify the donor of a crime scene print (a latent print) “to the exclusion of all others,” (i.e., engage in “individualization”); and (3) fingerprint identification is infallible and has a zero, or close to zero, error rate. As such, fingerprints are considered “powerful” evidence against defendants.
Recently, however, the ability of many forensic disciplines, like friction ridge analysis, to engage in individualization has been called into question. There are a number of reasons for this. First, the increasing tally of DNA exonerations has exposed the frailty of such disciplines, with invalidated and improper forensic evidence contributing to nearly half of the wrongful convictions (exonerated by DNA) identified by the Innocence Project to date. According to Professor Carrie Sperling, “[a]s the number of DNA exonerations rises, concerns about flaws in the system have turned to a realization that evidence we once thought to be hard proof of guilt—confessions, eyewitness identifications, bite marks, ballistics—lack reliability.” Second, “DNA evidence has become the gold-standard” that “has raised the bar as to what is scientifically acceptable for identifying a source ‘to the exclusion of all others.’” Third, in 2009, the National Academy of Sciences (NAS) produced a landmark report—Strengthening Forensic Science in the United States: A Path Forward—which concluded that, “[w]ith the exception of nuclear DNA analysis . . . [,] no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” The NAS Report made some specific criticisms about friction ridge analysis, including that it was not properly “underpinned.” Soon after the report was published, the U.S. Supreme Court acknowledged that many forensic sciences are subject to “[s]erious deficiencies.” Unsurprisingly, defendants began using the NAS Report to bolster their appeals (and other motions), arguing the report’s findings supported a claim that fingerprint identification evidence is unreliable and should not have been (or be) admitted against them. Numerous courts between 2009 and 2011 acknowledged the NAS Report, but responded to its criticisms in different ways. While some courts simply pay “lip service” to the Report, others have grappled with its methods and more carefully considered its findings. Overall, however, courts continue to strongly favor the admission of fingerprint identification evidence. In doing so, most courts rely on the adversarial process (i.e., defense counsel’s ability to weed out frailties in such evidence via cross-examination) to “resolve and neutralize” any post-NAS Report concerns about the reliability of fingerprint evidence.
By focusing on the role of defense counsel (and the adversarial system) as a basis for rejecting such appeals, the courts have been drawing upon an “instrumental” value of finality; namely, incentivizing defense counsel to prevent errors at trial level. As Professor Erin Murphy states, “[a]s currently configured, our [criminal justice] system . . . heavily depends upon the skill of counsel and in-court confrontation rather than out-of-court oversight and structural reform . . . .” The term “finality” represents the conclusion that a certain set of interests are best served by limiting review.” In addition to incentivizing defense counsel, “[t]hese interests include ensuring respect for criminal judgments, conserving state resources, furthering the efficiency and deterrent and educational functions of criminal law, satisfying the human need for closure, . . . and preventing a flood of frivolous claims from masking the fewer, credible ones.” This judicial trend has continued post-2011.
This article presents a cohort of cases that demonstrate this pattern in judicial decision-making and highlights the implications of relying on this finality interest to remedy the problems associated with forensic identification evidence. Part II describes the process of friction ridge analysis, the NAS Report’s findings about friction ridge analysis, and some recent efforts to improve the discipline. Part III outlines relevant admissibility frameworks and judicial responses to challenges to fingerprint evidence between 2009 and 2014, illustrating the influence of finality on judicial decision making in these cases. Part IV discusses the implications of relying on finality to rationalize such decisions. It suggests that, in relying on the role of defense counsel and the adversarial system to rationalize their decisions, courts are overlooking the limitations of the adversarial system, specifically the difficulties lawyers have in engaging with scientific evidence and the problems encountered by their audience (i.e., the jury) when receiving such evidence. As Professor David Faigman stated, legal consumers of science (including lawyers, judges, jurors, and other legal personnel) “often have little understanding of the product they are buying.” Part V concludes that the courts should consider taking new perspectives on finality in such cases, and give more meaningful consideration to the issues that arise when law consumes science in this way.