BARRY J. PORTMAN
Federal Public Defender
DAVID W. FERMINO
Assistant Federal Public Defender
19th Floor Federal Building
450 Golden Gate Avenue
San Francisco, CA 94102
(415) 436-7700
Counsel for Defendant XXXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
|
UNITED STATES OF AMERICA, Plaintiff, v. XXXX XXXX, Defendant. _____________________________________ |
) ) ) ) ) ) ) ) ) ) |
|
No. CR-00-0000 ABC DEFENDANT=S SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE FINGERPRINT EXPERT Hearing Date: April 14, 2005 |
|
|
|
|
|
|
|
INTRODUCTION
The government has given
notice to the defense that it intends to call a fingerprint expert at
trial. The government has also provided
a statement of the purported bases for the expert=s opinions.
Because it is clear that the inspector=s opinion concerning the absence of
fingerprints in the majority of criminal cases does not withstand examination
under the Supreme Court=s decision in Kumho Tire v. Carmichael,
526 U.S. 137 (1999), this Court should exercise its gatekeeping function and
preclude the expert from offering this opinion.
DISCUSSION
On April 1, 2005, the
government provided notice to the defense that it intends to call San Francisco
Police Inspector Pauline Hnatow to testify that no latent fingerprints were
recovered from the firearm or ammunition at issue in this case. The government also indicated that Inspector
Hnatow would testify that Abased on her experience, fingerprints are
not found on firearms and ammunition in the majority of criminal cases.@ Govt=s Notice of Expert Testimony, at 5.
On April 6, 2005, the
government supplemented its expert disclosure to include the Abases
and reasons@ for its experts=
opinions, as required by Rule 16(a)(1)(G) of the Federal Rules of Criminal
Procedure. In its supplemental filing,
the government reiterated its expectation that Inspector Hnatow will testify
that Abased upon her experience, usable
fingerprints are usually not found in the majority of criminal cases.@ Gov=t Supp. Notice of Expert Testimony, at
7. No other bases or reasons for this
opinion were identified.
I.
The Admissibility of Expert Testimony Based on
Experience Is Governed By Kumho Tire
In Kumho Tire, the Supreme Court made it clear that the gatekeeping analysis articulated by the Court in Daubert applies not only to scientific testimony but also purported expert testimony based on Aspecialized knowledge@ from personal experience. Kumho Tire, 526 U.S. at 146. The Court explained that the function of the Daubert analysis Ais to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.@ Id. at 152 (emphasis added). Accordingly, when an expert purports to testify on the basis of personal knowledge, the court must be satisfied that Athe testimony has a reliable basis in the knowledge and experience of [the relevant] discipline.@ Id. at 149 (citation and internal quotation marks omitted).
The Court took pains to discredit the Court of Appeals= view that the Daubert gatekeeping analysis did not apply to expert testimony based on Askill- or experience-based observations.@ Id. at 151. To the contrary, the Court explained that
[i]n certain cases, it will be appropriate for the trial judge to ask, for example, how often an engineering expert=s experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community. Likewise, it will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.
Id. The issue is not whether Aan expert might draw a conclusion from
a set of observations based on extensive and specialized experience@; clearly, he might. Id. at 156. The issue is whether that conclusion is reliable.
In this regard, the Court was
careful to distinguish between the qualifications of an expert and that
expert=s methodology. While both qualifications and methodology
are germane to the gatekeeping analysis, qualifications alone will not render
expert testimony admissible if the expert=s methodology is unacceptable. In Kumho Tire itself, there was
never any question concerning the qualifications of the plaintiff=s
expert, who had a master=s degree in mechanical engineering, ten
years of experience at a tire company, and significant experience as an expert
in the field of manufacturing defects. See
id. at 144-45. Nonetheless, the
district court excluded his testimony, and the Supreme Court affirmed, Abecause,
despite those qualifications, [the court] initially doubted, and then found
unreliable, the methodology employed by the expert in analyzing the data
obtained in the visual inspection, and the scientific basis, if any, for such
an analysis.@ Id.
at 153.
In sum, Kumho Tire
teaches that experience alone does not make an expert. Before a witness is qualified to give an
expert opinion, the trial court must be satisfied that the opinion is based on
a reliable methodology.
II.
Inspector Hnatow=s
Negative Fingerprint Testimony Is Inadmissible Under Kumho Tire
Here, the government seeks to elicit from Inspector Hnatow the Aexpert@ opinion that Ausable fingerprints are usually not found in the majority of criminal cases.@ Govt=s Supp. Notice of Expert Testimony, at 7. It is clear from the government=s original and supplemental notices of expert testimony that this opinion will be based on Inspector Hnatow=s personal experience as a fingerprint tester. According to the government, Inspector Hnatow Ahas processed over 400 firearms for fingerprints.@ Id.
The government appears to take the view that because Inspector Hnatow has examined 400 firearms, she can offer the expert opinion that fingerprints are not recovered in Athe majority of criminal cases.@ Putting aside the obvious question of whether and how the inspector can extrapolate from her own 400 examinations to the majority of all criminal cases, the government fails to grasp Kumho Tire=s central holding that experience alone does not render a person qualified to give expert testimony. This Court must still evaluate the expert=s methodology, for Anothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.@ Kumho Tire, 526 U.S. at 157 (quoting General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)); see also Fed. R. Evid. 702, Adv. Comm. Notes to 2000 Amendments (AThe trial court=s gatekeeping function requires more than simply >taking the expert=s word for it.=@).
Here, however, the Court cannot assess Inspector Hnatow=s methodology because, despite multiple opportunities, the government has failed to describe it. It appears that the inspector=s Amethodology@ consists of examining firearms and noting whether she obtains usable prints. Even under the most forgiving test of reliability, this methodology comes up well short.
The Supreme Court in Kumho Tire approved of the application of Daubert factors to assess the reliability of expert testimony based on personal knowledge or experience. These factors include:
BWhether a Atheory or technique . . . can be (and has been) tested@;
BWhether it Ahas been subjected to peer review and publication@;
BWhether, in respect to a particular technique, there is a high Aknown or potential rate of error@ and whether there are Astandards controlling the technique=s operation@; and
BWhether the theory or technique enjoys A>general acceptance=@ within a A>relevant scientific community.=@
Kumho Tire, 526 U.S. at 149-50 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94 (1993)).
Application of these factors to Inspector Hnatow=s purported opinion leaves no doubt that the opinion is inadmissible under Rule 702. The inspector=s 400 firearm examinations were not identical to one another. They involved different firearms, recovered under different conditions, examined at different time intervals after prints were deposited, handled by law enforcement in different manners, and possibly processed using different techniques. The notion that comparison of the results of these examinations constitutes a Atheory or technique@ that is testable, subject to peer review, subject to uniform standards, or generally accepted by the relevant community is nonsensical. Inspector Hnatow=s own sample set is impossible to replicate, and her technique is defined by the absence of controls rather than the application of any objective standards.
As such, Inspector Hnatow=s methodologyBto the extent she has one at allBdoes not have a Areliable basis in the knowledge and experience of [the] discipline.@ Id. at 149 (quoting Daubert, 509 U.S. at 592). It follows that this Court, exercising its gatekeeping function to exclude unreliable expert testimony, should not permit the inspector to offer an expert opinion that usable prints are Ausually not found in the majority of criminal cases.@
CONCLUSION
For the reasons stated, Inspector Hnatow=s opinion that prints are not found in the majority of criminal cases is inadmissible under Kumho Tire. Accordingly, the Court should preclude the inspector from offering this expert opinion at trial.
Dated: April 8, 2005
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public Defender