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F 2.025 n1 Evaluation Of Fingerprint Evidence.
(See FORECITE F 2.025a and F 2.025 n4.)
F 2.025 n2 Defendant Permitted To Comment On Lack Of Fingerprint Evidence.
(See FORECITE F 1.24 n6 and F 2.025 n4.)
F 2.025 n3 Improper To Characterize Prosecution Witness As Fingerprint “Expert.”
See FORECITE F 2.80 n20 and F 2.025 n4.
F 2.025 n4 Challenge To Admission Of Fingerprint Evidence.
A “Motion to Exclude Fingerprint Identification Evidence and Request for a Hearing Pursuant to People v. Kelly (76) 17 C3d 24, Or, in the Alternative, Motion for Funds to Retain Fingerprint Experts and to Permit Their Testimony Before the Jury,” is available. See Motion Bank # M-3015.
RESEARCH NOTE
Suspect Identities by Simon Cole (Harvard University Press, 2001).
F 2.025a
Evaluation Of Fingerprint Evidence
Fingerprints by themselves do not establish that the defendant committed the crime charged. They establish only that the defendant touched the item in question.
[Thus, a guilty verdict may not be based on fingerprint evidence alone unless the prosecution has proven beyond a reasonable doubt that the fingerprints were left at the time that the crime was committed.]
Points and Authorities
The cases which discuss the sufficiency of fingerprint evidence to support conviction turn on whether the prosecution has established that the fingerprints must have been left at the time of the crime. While fingerprint evidence is certainly strong evidence of the identity of the person who left the fingerprint (see People v. Gardner (69) 71 C2d 843, 849 [79 CR 743]), such evidence is not itself sufficient to prove guilt beyond a reasonable doubt where the defendant concedes that the prints were his but contests that they were left during the commission of the crime. In such a case, it is the prosecution’s obligation to establish beyond a reasonable doubt that the prints were left during the crime. For example, in People v. Ang (62) 204 CA2d 553, 554-56, [22 CR 455], People v. Amador (70) 8 CA3d 788, 790 [87 CR 662], and People v. Massey (61) 196 CA2d 230, 234 [16 CR 402], the fingerprint evidence was held to be sufficient because it supplemented other evidence which supported a reasonable inference that the prints were made during the course of the crime. On the other hand, People v. Johnson (84) 158 CA3d 850, 855 [204 CR 877] and Birt v. Superior Court (73) 34 CA3d 934 [110 CR 321] held the evidence to be insufficient. In Johnson, the police forced entry into a house containing a laboratory used to manufacture PCP. The defendant was found standing in the kitchen. Directly overhead, the officers discovered a recess in the ceiling in which two bottles of PCP were hidden. The defendant’s thumbprint was on one of the bottles. The Johnson court held the evidence insufficient to convict the defendant of possessing PCP for sale. “`[T]here is a limit to the mileage that can be obtained from the fingerprint evidence … [t]he only fact directly inferable from the presence of the fingerprint [] is that sometime, somewhere defendant touched the container [].’ [Citation].” In Birt, the court of appeal held evidence of the defendant’s fingerprints on a cigarette lighter in a rental vehicle containing loot from a residential burglary was insufficient even to bind him over for trial. Said the Birt court: “At most, the presence of [defendant’s] fingerprint on the lighter found on the front seat showed that, at some unknown time and place, she had been inside the van; but there was no direct or circumstantial evidence to indicate when and where that had been. Only by guesswork, speculation, or conjecture can it be inferred that [defendant] was inside the van, or in the area, at the time of the …. burglary.” (Birt, 34 CA3d at 938.)
The companion cases of Borum v. U.S. (DC Cir. 1967) 380 F2d 595 and Stevenson v. U.S. (DC Cir. 1967) 380 F2d 590 are also consistent with this analysis. In Borum, the court of appeals reversed a conviction for house breaking even though Borum’s fingerprints were found on ordinary glass jars that had been emptied of a “valuable coin collection” during the burglary. The jars were generic and the fingerprints could have been on them for years. The reviewing court thought it decisive that the government failed to show that the jars were inaccessible to the defendant. (Ibid.) “The jury may have thought that [defendant] never had any opportunity to touch the jars outside the house either before or after complainant bought them. But that conclusion would have been based on speculation alone.” (Stevenson, 380 F2d at 597.) On the other hand, the conviction of co-defendant Stevenson was affirmed because his fingerprints were found on a tea canister to which there was no reason to suppose the defendant could have had access. (Stevenson, 380 F2d at 592; see also Schell v. Witek (9th Cir. 1999) 181 F3d 1094 [where the only evidence connecting defendant to the crime is a single fingerprint, it may be ineffective assistance to fail to consult a fingerprint expert]; compare Mikes v. Borg (9th Cir. 1991) 947 F2d 353 [single fingerprint on item that might have been touched before crime is insufficient to convict] to Taylor v. Stainer (9th Cir. 1994) 31 F3d 907 [print on inside of victims window sill sufficient].) [An unpublished opinion on this issue is available to FORECITE subscribers, ask for Opinion Bank # O-220.]
Use of Bracketed Language
In some cases, fingerprint evidence may be the only evidence of guilt. For example, the government might seek a murder conviction where the defendant’s fingerprints are found on the murder weapon even if no witness can place the defendant at the scene of the crime. (See Mikes v. Borg (9th Cir. 1991) 947 F2d 353.) In such a case, the jury should be instructed that the fingerprint evidence, standing alone, cannot support a conviction. (Id., at 361, emphasis in original [“in a case resting upon the premise that the defendant impressed his fingerprints on an object at the time of the commission of the crime and supported solely by evidence that the defendant’s fingerprints were found on that object, the record must contain sufficient evidence to permit a jury, applying the beyond a reasonable doubt standard, to draw the inference that the defendant touched the object during the commission of the crime“; but see Schell v. Witek (9th Cir. 2000) 218 F3d 1017, 1022-23 [single fingerprint, if it is located on an object in a non-public place may be sufficient to convict]; see also FORECITE F 2.025 n1 and F 2.025 n4.)
NOTE: Paragraph 1 of the above instruction was given in a San Bernardino county case (Case Number FVI-08662). See FORECITE At Work At Trial (Steve F. Bremser).
F 2.025b
Fingerprint Evidence: Expert Testimony Not Binding
The fact that _____________ (name of fingerprint expert) was permitted to give an opinion regarding fingerprint analysis does not make [his] [her] testimony binding on you. [His] [Her] opinion should be treated the same as any other evidence which means that you are free to disregard it in whole or part. You are not required to accept the opinion of such a witness merely because the witness has special knowledge or experience regarding fingerprints.
Points and Authorities
Without a cautionary instruction the jury may give undue emphasis to the testimony of a fingerprint expert. Because of the unique nature of fingerprint evidence it may be appropriate to specifically instruct the jurors that fingerprint evidence is not binding upon them. In such an instruction the jury should be informed that an expert is presented to assist the jury in its deliberations and the jury may disregard the expert’s testimony either in whole or part. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:43.70 (Cum.Supp) [General Instructions-Fingerprints] (West, 1999); see also People v. Woods (NY 1987) 520 NYS2d 632, 632.)
See also FORECITE F 2.80d [Deletion Of The Term “Expert” From Expert Witness Instruction.].
See also FORECITE F 2.025 n4.
RESEARCH NOTES:
See Reference Manual On Scientific Evidence: The Supreme Court’s Trilogy On The Admissibility Of Expert Testimony, Federal Judicial Center (2nd ed., 2000).
See Reference Manual On Scientific Evidence: Management Of Expert Evidence, Federal Judicial Center (2nd ed., 2000).
See Reference Manual On Scientific Evidence: C(1) Determining If The Expert’s Field Or Discipline Is Reliable, Federal Judicial Center (2nd ed., 2000).
