Lead Opinion
Affirmed by published opinion. Judge KING wrote the majority opinion, in which Chief Judge WILKINS joined. Judge MICHAEL wrote a dissenting opinion.
OPINION
Patrick Leroy Crisp appeals multiple convictions arising from an armed bank robbery carried out in Durham, North Carolina, on June 13, 2001. Crisp maintains that his trial was tainted by the Government’s presentation of inadmissible expert testimony. His appeal presents a single question: whether the disciplines of forensic fingerprint analysis and forensic handwriting analysis satisfy the criteria for expert opinion testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
I.
At approximately 12:25 p.m. on June 13, 2001, a lone male, wearing a mask and surgical gloves, and carrying a handgun, entered the Central Carolina Bank in Durham, North Carolina. He approached Joan Adams, a teller, threw a bag on the counter, and instructed her to “fill up the god*mned f* * *ing bag.” Adams promptly gave the gunman the sum of $7,854 in cash, which included bait bills and an electronic tracking device. Then, a horn sounded twice from the parking lot outside, and the robber left the bank and made his getaway in a purple Ford Probe automobile.
Shortly thereafter, Durham police officer Michael Britton heard radio traffic stating that a purple Ford Probe was involved in a bank robbery. Driving on Faison Road, he observed a purple Ford Probe parked on the wrong side of the street. Officer Britton immediately secured the vehicle, and he later learned that it had been stolen the previous day.
The next day, June 14, 2001, the authorities received a call on its Crimestoppers telephone line from an individual who
On June 15, 2001, Crisp, while driving a rented Pontiac Grand Am with Mitchell as a passenger, came upon a police license checkpoint. Crisp was unable to produce a valid driver’s license, and he advised the officers that his name was Jermaine Jackson. A small amount of marijuana was found in the vehicle. While Crisp was being interviewed, Mitchell informed the police of Crisp’s real identity, and the officers promptly learned of the outstanding warrant for Crisp’s arrest. Crisp was then taken into custody.
Torain was also arrested, and he was incarcerated in the same jail as Crisp. On June 20, 2001, as he walked past Crisp’s cell, a handwritten note (the “Note”) was slid out from under Crisp’s door. The Note, the last line of which was allegedly crossed out when delivered, stated:
Lamont
You know if you don’t help me I am going to get life in prison, and you ain’t going to get nothing. Really it’s over for me if you don’t change what you told them.
Tell them I picked you up down the street in Kathy’s car. Tell them that I don’t drive the Probe. Tell them Mike drove the Probe. He is the one that told on us. Tell them the gun and all that shit was Mike’s. That is what I am going to tell them tommorow [sic].
Tell the Feds Mike drove you away feom-the-bank Patrick.
During the investigation of the robbery, Crisp’s girlfriend, Katherine Bell, gave police officers consent to search both her residence in Hillsborough, North Carolina, and her car, a white Ford Escort. The officers found surgical gloves in the vehicle, and in her bedroom they discovered a bullet proof vest and a sawed-off shotgun. In the course of the investigation, the officers obtained palmprints and handwriting exemplars from Crisp.
Both Mitchell and Torain testified against Crisp at Crisp’s trial, which was conducted from September 10 through September 13, 2001, in Winston-Salem, North Carolina.
Torain described to the jury a slightly different set of events. He asserted that it was Mitchell and Crisp who planned the robbery, and that, originally, it was he who was to drive the getaway vehicle. According to Torain, when Mitchell refused to participate, the plan changed: Torain entered the bank, while Crisp waited in the getaway car.
At trial, Mary Katherine Brannan, a fingerprint expert with the North Carolina State Bureau of Investigation (“SBI”), testified that Crisp’s right palm had produced a latent print that had subsequently been recovered from the Note. Furthermore, a handwriting expert, Special Agent Thomas Currin, a “questioned document analyst” with the SBI, testified that Crisp had authored the Note.
Crisp presented an alibi defense. His cousin, Cecilia Pointer, claimed that, on the day of the robbery, her husband and Crisp came to her place of employment at approximately 12:30 p.m., and that the two men then left to submit applications at a temporary employment agency. She testified that they stopped back by her work around 1:00 p.m. or 1:15 p.m.
After the four-day jury trial, Crisp was found guilty of bank robbery, bank robbery with a dangerous weapon, and brandishing a firearm during and in relation to the bank robbery. On November 27, 2001, he received a sentence of 356 months of imprisonment and five years of supervised release. His notice of appeal was timely filed on November 27, 2001, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Fingerprint and handwriting analysis have long been recognized by the courts as sound methods for making reliable identifications. See, e.g., Piquett v. United States,
The Federal Rules of Evidence provide that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.... ” Fed.R.Evid. 702. The Supreme Court has made clear that it is the trial court’s duty to play a gatekeeping function in deciding whether to admit expert testimony: “[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc.,
In Daubert, the Court announced five factors that may be used in assessing the relevancy and reliability of expert tes
A.
We turn first to whether the fingerprint evidence was properly admitted against Crisp. Crisp has challenged the admission of this evidence on several grounds: His primary contention is that the premises underlying fingerprinting evidence have not been adequately tested. Crisp also maintains that there is no known rate of error for latent fingerprint identifications, that fingerprint examiners operate without a uniform threshold of certainty required for a positive identification, and that fingerprint evidence has not achieved general acceptance in the relevant scientific community.
1.
Fingerprint identification has been admissible as reliable evidence in criminal trials in this country since at least 1911. See People v. Jennings,
Upholding a district court’s admission of fingerprint evidence, the Seventh Circuit
2.
In his challenge to the admissibility of the fingerprint evidence, Crisp begins with the contention that the basic premises underlying fingerprint identification have not been subjected to adequate testing. The two premises that he singles out as requiring more searching scrutiny are: (1) that no two persons share the same fingerprint; and (2) that fingerprint examiners are able to make reliable identifications on the basis of small, distorted latent fingerprint fragments. In support of his assertions, Crisp notes that the expert in this case, Brannan, was unable to reference any study establishing that no two persons share the same fingerprint; she was able only to testify that no study had ever proven this premise false. In addition, Crisp contends that the Government itself seems unsure of the reliability of fingerprint evidence: in particular, Crisp notes that the National Institute of Justice, an arm of the Department of Justice, issued a solicitation for fingerprint validation studies in March of 2000. This solicitation calls for “basic research to determine the scientific validity of individuality in friction ridge examination,” and also seeks the development of standard procedures for fingerprint comparisons and for the testing of those procedures once adopted. National Institute of Justice, Forensic Friction Ridge (Fingerprint) Examination Validation Studies 4 (Mar.2000). Finally, though Crisp cites no studies demonstrating the unreliability of fingerprinting analysis, he brings to our attention two law review articles discussing the paucity of research into the fingerprint identification process.
3.
Crisp today advocates the wholesale exclusion of a long-accepted form of expert evidence. Such a drastic step is not required of us under Daubert, however, and we decline to take it. The Daubert decision, in adding four new factors to the traditional “general acceptance” standard for expert testimony, effectively opened the courts to a broader range of opinion evidence than was previously admissible. Although Daubert attempted to ensure that courts screen out “junk science,” it also enabled the courts to entertain new and less conventional forms of expertise. As the Court explained, the addition of the new factors would put an end to the “wholesale exclusion [of expert testimony based on scientific innovations] under an uncompromising ‘general acceptance’ test.” Daubert,
The touchstones for admissibility under Daubert are two: reliability and relevancy. See id. at 589, 597,
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. See Havvard,
In addition to a strong expert and judicial consensus regarding the reliability of fingerprint identification, there exist the requisite “standards controlling the technique’s operation.” Daubert,
Furthermore, in Havvard, the Seventh Circuit determined that Daubert’s “known error rate” factor was satisfied because the expert had testified that the error rate for fingerprint comparison was “essentially zero.”
In sum, the district court heard testimony to the effect that the expert community has consistently vouched for the reliability of the fingerprinting identification technique over the course of decades. That evidence is consistent with the findings of our sister circuits, and Crisp offers us no reason to believe that the court abused its discretion in crediting it. The district court also heard evidence from which it was entitled to find the existence of professional standards controlling the technique’s operation. Those standards provide adequate assurance of consistency among fingerprint analyses. Finally, the court heard testimony that fingerprint identification has an exceedingly low rate of error, and the court was likewise within its discretion in crediting that evidence. While Crisp may be correct that further research, more searching scholarly review, and the development of even more consistent professional standards is desirable, he has offered us no reason to reject outright a form of evidence that has so ably withstood the test of time.
Finally, even if we had a more concrete cause for concern as to the reliability of fingerprint identification, the Supreme Court emphasized in Daubert that “[v]igor
B.
In seeking to have his convictions vacated, Crisp also challenges the admissibility of the opinions of Currin, the handwriting expert, on grounds that are essentially idéntical to those on which he relied to make his case against fingerprint evidence. Crisp contends that, like fingerprinting identifications, the basic premise behind handwriting analysis is that no two persons write alike, and thus that forensic document examiners can reliably determine authorship of a particular document by comparing it with known samples. He maintains that these basic premises have not been tested, nor has an error rate been established. In addition, he asserts that handwriting experts have no numerical standards to govern their analyses and that they have not subjected themselves and their science to critical self-examination and study.
1.
While the admissibility of handwriting evidence in the post-Ncm&erf world appears to be a matter of first impression for our Court, every circuit to have addressed the issue has concluded, as on the fingerprint issue, that such evidence is properly admissible. See United States v. Jolivet,
2.
The Government’s handwriting expert, Thomas Currin, had twenty-four years of experience at the North Carolina SBI. On voir dire, and then on direct examination, he explained that all questioned documents that come into the SBI are analyzed first by a “questioned document examiner”;
At trial, Currin drew the jury’s attention to similarities between Crisp’s known handwriting exemplars and the writing on the Note. Among the similarities that he pointed out were the overall size and spacing of the letters and words in the documents; the unique shaping of the capital letter “L” in the name “Lamont”; the spacing between the capital letter “L” and the rest of the word; a peculiar shaping to the letters “o” and “n” when used in conjunction with one another; the v-like formation of the letter “u” in the word “you”; and the shape of the letter “t,” including the horizontal stroke. Currin also noted that the word “tomorrow” was misspelled in the same manner on both the known exemplar and the Note. He went on to testify that, in his opinion, Crisp had authored the Note.
3.
Our analysis of Daubert in the context of fingerprint identification applies with equal force here: like fingerprint analysis, handwriting comparison testimony has a long history of admissibility in the courts of this country. See, e.g., Robinson v. Mandell,
To the extent that a given handwriting analysis is flawed or flimsy, an able defense lawyer will bring that fact to the jury’s attention, both through skillful cross-examination and by presenting expert testimony of his own. But in light of Crisp’s failure to offer us any reason today to doubt the reliability of handwriting analysis evidence in general, we must decline to deny our courts and juries such insights as it can offer.
III.
For the foregoing reasons, we affirm the district court’s evidentiary rulings, and
AFFIRMED
Notes
. The credibility of both Mitchell and Torain was substantially impeached.
. In United States v. Rogers,
. See Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev. 1345, 1353 (1994) ("Considerable forensic evidence [such as fingerprinting] made its way into the courtroom without empirical validation of the underlying theory and/or its particular application.”); Michael J. Saks, Merlin and Solomon: Lessons from the Law's Formative Encounters With Forensic Identification Science, 49 Hastings L.J. 1069, 1105-06 (1998) (noting that the first courts to recognize the validity of fingerprint analysis "invested little effort assessing the merits of the proffered scientific evidence” and observing that: "Fingerprint evidence may present courts applying Daubert with their most extreme dilemma. By conventional scientific standards, any serious search for evidence of
. It is true that, in Rogers, we found fingerprinting evidence admissible in part because, in that case, "the possibility of error was mitigated ... by having two experts independently review the evidence.”
. Certain district courts, however, have recently determined that handwriting analysis does not meet the Daubert standards. See, e.g., United States v. Lewis,
. Rather than analyzing the ability of document examiners to correctly identify authorship, the studies to which Currin referred examined whether document examiners were more likely than lay people to identify authorship correctly. In one study, lay participants had a 38% error rate, while qualified document examiners had a 6% error rate.
Dissenting Opinion
dissenting:
The majority believes that expert testimony about fingerprint and handwriting identification is reliable because the techniques in these fields have been accepted and tested in our adversarial system over time. This belief leads the majority to excuse fingerprint and handwriting analysis from the more careful scrutiny that scientific expert testimony must now withstand under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
I.
The Daubert case lists five factors for assessing the reliability of expert scientific testimony: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has withstood peer review and publication; (3) whether there is a known or potential rate of error; (4) whether standards exist for the application of the theory; and (5) whether the theory has been generally accepted by the relevant scientific community. Daubert,
The majority excuses fingerprint and handwriting analysis from any rigorous Daubert scrutiny because these techniques are generally accepted and have been examined for nearly one hundred years in our adversarial system of litigation. These circumstances are not sufficient to demonstrate reliability in the aftermath of Dau-bert. To say that expert evidence is reliable because it is generally accepted is to say that it is admissible under Daubert because it was admissible under the old rule articulated in Frye v. United States,
Nor is fingerprint and handwriting analysis necessarily reliable because it has been subjected to the adversarial process
Nothing in the history of the use of fingerprint and handwriting evidence leads me to conclude that it should be admitted without the scrutiny now required by Dau-bert. The government, of course, has the burden to put forward evidence “from which the court can determine that the proffered testimony is properly admissible” under Daubert. Md. Cas. Co. v. Therm-O-Disc, Inc.,
II.
A.
At Crisp’s trial the government’s fingerprint identification evidence failed to satisfy any of the Daubert requirements for establishing scientific reliability. The first Daubert factor is whether the technique has been tested. The government did not offer any record of testing on the reliability of fingerprint identification. See J.A. 361 (testimony of the government’s fingerprint expert, an employee of the North Carolina Bureau of Investigation, stating that she was not aware of any testing on the validity of the science). Indeed, it appears that there has not been sufficient critical testing to determine the scientific validity of the technique. See United States v. Llera Plaza,
The second Daubert factor is whether the science or technique has been subjected to peer review and publication. Again, the government offered no evidence on this factor at trial. Fingerprint examiners, like other forensic scientists, have their own professional publications. Epstein, supra at 644. But unlike typical scientific journals, the fingerprint publications do not run articles that include or prompt critique or reanalysis by other scientists. Indeed, few of the articles address the principles of fingerprint analysis and identification at all; rather, most focus on the process of lifting fingerprints from crime scenes. Epstein, supra at 644. This lack of critical analysis in the fingerprint identification field has had a predictable effect. Unlike traditional scientific fields where criticism and vibrant exchange of ideas have led to dramatic advances, the techniques used by fingerprint analysts have changed little over the years. Simon Cole, What Counts for Identity? The Historical Origins of the Methodology of Latent Fingerprint Identification, Sci. in Context, Spring 1999, at 139, 165 (noting that little change has taken place in the methodology of analyzing latent prints).
The third Daubert factor calls for consideration of the known or potential rate of error. The government has not tested the reliability of fingerprint identification, so it ignored the error rate factor in this case. J.A. 360 (testimony of government’s expert that “[a]s far as statistics, off the top of my head at this point, I cannot give you any. I do know that ... errors have been made in the field of fingerprints.”); see also Epstein, supra at 633. Some courts have merely assumed that the rate of error in fingerprint identification is low. See Llera Plaza,
The fourth Daubert factor asks whether there are universal standards that govern the application of the technique. The government did not establish that there are such standards. Its expert asserted that her department had controlling standards, yet when pressed on the point, she admitted that the degree of similarity required to find that prints are matching “is left up to each individual examiner.” J.A. 363. As one forensic expert contends, “[a]ny unbiased, intelligent assessment of fingerprint identification practices today reveals that there are, in reality, no standards.” Stoney, supra § 27-2.3.1 [2], Many fingerprint examiners testify in terms of matching points, that is, the number of similarities between the ridges in the print taken from the crime scene and the ridges in the defendant’s known print. But the trend has been toward eliminating any requirement for a minimum number of matching points before an opinion can be given that a latent print and a known exemplar are attributable to the same person. See J.A. 363 (testimony of the government’s fingerprint expert that no minimum number of points is required); Llera Plaza,
Further, even the safety checks that are thought to be universally accepted are not consistently followed. For example, fingerprint experts are supposed to reject as matching a pair of prints that contain even one dissimilarity. Epstein, supra at 640. At least one expert, however, has said that when fingerprint examiners believe the
In short, the government did not establish that there are objective standards in the fingerprint examination field to guide examiners in making their comparisons.
The fifth (and final) Daubert factor is whether the technique has been generally accepted in the relevant scientific community. I acknowledge, of course, that the general public, which sees movies and television programs that regularly portray fingerprinting and other forensic techniques as key to crime solving, regards fingerprint identification as perfectly reliable. Moreover, several circuit courts since Daubert have held — without going deeply into the question — that fingerprint evidence is admissible. See United States v. Hernandez,
B.
Even if the proponent of scientific expert evidence does not satisfy the Daubert factors, the evidence may be admissible if it is otherwise shown to be reliable. Cf. Daubert,
Fingerprint identification’s long history of use does not by itself support the deci
Fingerprint identification may also be seen as reliable because the examination community prevents its experts from testifying to a match unless they are certain of the match. Fingerprint experts, in other words, refuse to hedge their testimony in terms of probability. 3 David L. Faigman et al., Modem Scientific Evidence: The Law and Science of Expert Testimony § 27-1.0, § 27-1.0 (2002 & Supp.2003). This practice seems to have hastened the technique’s acceptance by courts, who have
The history of fingerprint identification and the dogged certainty of its examiners are insufficient to show that the technique is reliable. Because of that and the government’s failure to show that its fingerprinting evidence is reliable under the Daubert standards, I conclude that the district court’s decision to admit the fingerprint evidence was an abuse of discretion. Cf. 3 Faigman et al., supra § 27-1.0 (“A judge who takes Daubert’s commands seriously would be hard pressed to write a coherent opinion justifying a decision to admit the expert [fingerprinting] opinion.”)
III.
Handwriting identification evidence has been greeted with more skepticism by courts in the wake of Daubert. Some courts have refused to admit it. See Lewis,
I will again run through the Daubert factors, considering first whether the technique of handwriting analysis has been tested. The proposition that forensic document examiners can reliably identify handwriting was not established in this case. See Saelee,
The next Daubert question is whether handwriting examination has been subjected to peer review and publication. The government did not present any evidence about peer review or critical scholarship in the field. See, e.g., Hines,
The next Daubert factor requires a look at the technique’s known or potential rate of error. Under pressure from courts, handwriting analysis appears to have been subjected to more testing than fingerprint analysis. See Risinger, Handwriting Identification, supra § 28-2.3. In this case, however, the government failed to introduce any evidence about what the error rate might in fact be. See J.A. 332-33 (testimony of the government’s handwriting expert discussing studies in general terms); J.A. 336 (“I would hesitate to say that it has a known rate of error....”); J.A. 338 (“So I, again, would have to say that I’m not aware of any set error rate.... ”). The testing that has been done suggests that experts, on average, do better than non-experts at avoiding false positives, that is, in identifying someone as an author who in fact is not. See Risinger et al., Reply, supra at 421; Risinger, Handwriting Identification, supra § 28-2.3.6[4]. On some tests, however, the best of the non-experts did as well as some of the experts. See Risinger et al., Reply, supra at 421. Even these modest results have been challenged. Id. at 423-29 (noting problems in the methodology of the testing, including motivational differences between experts and non-experts, the lack of controls to prevent sharing of answers among experts, and the lack of similarity between the test and the day-to-day work of document examiners); Risinger, Handwriting Identification, supra § 28-2.3 (discussing the tests). Moreover, other more challenging studies that more accurately reflect real world conditions show higher rates of error. One study found that as many as nine percent of document examiners misidentified a forgery as being written by the named author, and almost one-quarter of the examiners incorrectly concluded that a disguised writing was written by someone other than the true author. Risinger, Handwriting Identification, supra § 28-2.3.8[l]. The error rates in the testing that has been reported are disquieting to say the least. In any
The next Daubert factor focuses on whether there are standards or controls that govern the expert’s analysis. In this ease the government’s expert asserted that handwriting examiners follow the same methodology, J.A. 335-36, but he provided no listing of objective criteria that are used to form an opinion. There does not seem to be any list of universal, objective requirements for identifying an author. J.A. 342-43; Lewis,
The last factor is whether the technique is generally accepted in the scientific community. The general acceptance of handwriting analysis appears to come only from those within the field. Saelee,
The government did not show that there are factors beyond the Daubert list that credibly demonstrate the reliability of handwriting evidence. Like fingerprint experts, document examiners' have long been allowed to testify in judicial proceedings. Saelee,
Because the government has failed to demonstrate either that its handwriting evidence satisfies the Daubert factors or that it is other-wise reliable, I would reverse the district court’s decision to admit it as an abuse of discretion. See Starzecpyzel,
IV.
Because the government failed to show that its fingerprint and handwriting evidence meets Daubert’s requirements or is otherwise reliable, the evidence should have been excluded. The government conceded at oral argument that this evidence was necessary to prove Crisp’s guilt beyond a reasonable doubt. Because the evidence was inadmissible, I would reverse Crisp’s conviction. I must therefore respectfully dissent.