Tenth Circuit Caps Banner Month for Fingerprint Experts

After April, fingerprint analysts won't be having to look for new career paths anytime soon. On the same day this week that the Third Circuit issued its comprehensive opinion upholding fingerprint identification testimony in United States v. Mitchell, No. 02-2859 (3d Cir. Apr. 29, 2004), on which we have already posted, the Tenth Circuit chimed in with a fingerprint decision of its own. See United States v. Ward, No. 03-6005 (10th Cir. Apr. 29, 2004) (Ebel, Holloway, & Briscoe, JJ.). True, the Tenth Circuit's opinion is unpublished, and true, it technically didn't reach the testimony's admissibility, merely holding that any error in admitting it would have been harmless. But the Tenth Circuit panel did afford a strong clue to its general sentiments on the subject:

Circuits that have addressed the admissibility of fingerprint evidence have determined it is scientifically reliable. See United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (concluding fingerprint identification satisfied Daubert); United States v. Hernandez, 299 F.3d 984 (8th Cir. 2002) (same); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001) (same). In Crisp, the court stated that "while the principles underlying fingerprint identification have not attained the status of scientific law, they nonetheless bear the imprimatur of a strong general acceptance, not only in the expert community, but in the courts as well." 324 F.3d at 268.

The Third Circuit's opinion in Mitchell sent an even blunter message: "[T]his case does not announce a categorical rule that latent fingerprint identification evidence is admissible in this Circuit," it said, but "we trust that the foregoing discussion provides strong guidance."

Meanwhile, just two weeks ago, the Seventh Circuit reached the same result in United States v. George, No. 02-2996 (7th Cir. Apr. 14, 2004), declining to revisit its earlier conclusion in the Havvard decision that fingerprinting passes general reliability muster. "[W]e feel comfortable," said the panel in George, "that Havvard correctly decided the issue of fingerprint analysis admissibility."

It sounds as though further challenges to the general reliability of fingerprint identification could be met, in these circuits, with diminishing appellate patience.