                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2004

USA v. Mitchell
Precedential or Non-Precedential: Precedential

Docket No. 02-2859




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                    PRECEDENTIAL         Suite 540 West - Curtis Center
                                         Independence Square West
IN THE UNITED STATES COURT OF            Philadelphia, Pennsylvania 19106
APPEALS FOR THE THIRD CIRCUIT
       ____________________                  Counsel for Appellant

             NO. 02-2859
         ___________________             PATRICK L. MEEHAN
                                         United States Attorney
    UNITED STATES OF AMERICA
                                         LAURIE MAGID
                    v.                   Deputy United States Attorney
                                           for Policy and Appeals
          BYRON MITCHELL                 MICHAEL L. LEVY
                                         Assistant United States Attorney
                          Appellant      ROBERT A. ZAUZM ER (Argued)
          ________________               Assistant United States Attorney
                                         PAUL A. SARMOUSAKI
                                         Assistant United States Attorney
   On Appeal from the United States      Senior Appellate Counsel
           District Court for            Eastern District of Pennsylvania
  the Eastern District of Pennsylvania   Suite 1250
        (D.C. No. 96-cr-407-1)           615 Chestnut Street
             District Judge:             Philadelphia, Pennsylvania 19106
       Honorable J. Curtis Joyner
    __________________________               Counsel for Appellee
                                               _______________________
       Argued September 9, 2003
                                                        OPINION
    Before: BARRY, BECKER and                    _______________________
    GREENBERG, Circuit Judges.
                                                   TABLE OF CONTENTS
         (Filed April 29, 2004)


                                         I. Introduction . . . . . . . . . . . . . . . . . . . 3
MAUREEN KEARNEY ROWLEY
Chief Federal Defender
DAVID L. McCOLGIN                        II. Facts and Procedural History . . . . . 4
Supervising Appellate Attorney
ROBERT EPSTEIN (Argued)                      A. The Offense and Mitchell’s
Assistant Federal Defender                      First Trial and Appeal . . . . . . . . 4
Federal Court Division                       B. Latent Fingerprint Identification
Defender Association of Philadelphia
         and the Daubert Hearing . . . . . . 5                       Expert Testimony . . . . . . . . . . 24
         1. The Field of Latent                                      1. Testability . . . . . . . . . . . . . 24
            Fingerprint Identification . . 5
                                                                     2. Peer Review . . . . . . . . . . . . 28
         2. The Daubert Hearing . . . . . . 7
                                                                     3. Error Rate . . . . . . . . . . . . . . 29
             a. The Government’s
                                                                     4. Maintenance of
                Experts . . . . . . . . . . . . . . 7
                                                                        Standards . . . . . . . . . . . . . . 32
             b. Mitchell’s Experts . . . . 12
                                                                     5. General Acceptance . . . . . . 32
             c. Mitchell’s Exhibits . . . . 15
                                                                     6. Relationship to
             d. The Government’s                                        Established Reliable
                Rebuttal Witness . . . . . 15                           Techniques . . . . . . . . . . . . 32
         3. The District Court’s                                     7. Degree to Which the
            Daubert and Judicial                                        Expert Testifying Is
            Notice Rulings . . . . . . . . . . 16                       Qualified . . . . . . . . . . . . . . 33
    C. Mitchell’s Second Trial . . . . . 17                          8. Non-Judicial Uses . . . . . . . 34
         1. The Government’s Case . . . 17                       D. Application to the Record of
                                                                    Core Daubert Principles . . . . . 35
         2. Mitchell’s Case and
            Cross-Examination of the                             E. Conclusion on the
            Government’s Experts . . . . 19                         Admissibility of the
                                                                    Government’s Evidence . . . . . 38
    D. Withholding of the NIJ
       Solicitation and Mitchell’s
       Post-Trial Motion . . . . . . . . . . 20
                                                             IV. Admissibility of Mitchell’s
    E. This Appeal . . . . . . . . . . . . . . . 21             Expert Testimony . . . . . . . . . . . . . 39
                                                                 A. Introduction . . . . . . . . . . . . . . 39
III. Admissibility of the                                        B. Velasquez . . . . . . . . . . . . . . . . 39
    Government’s Expert
                                                                 C. The Parties’ Interpretations of
    Testimony . . . . . . . . . . . . . . . . . . . 21
                                                                    the District Court’s Rulings . . 40
    A. Standard of Review . . . . . . . . 21
                                                                 D. Discussion . . . . . . . . . . . . . . . . 43
    B. Standard for Admissibility
       under Rule 702 . . . . . . . . . . . . 22
                                                             V. The District Court’s
    C. Application of Daubert
                                                                Declaration of Judicial Notice . . . 45
       Factors to Government’s


                                                         2
    A. Appropriateness of Judicial                           the application of the various Daubert
       Notice . . . . . . . . . . . . . . . . . . . 45       factors to the prosecution’s expert
                                                             testimony. We conclude that the testimony
    B. Harmless Error Analysis . . . . . 47
                                                             passes Daubert muster, and that there are
                                                             “good grounds,” id. at 590, for its
                                                             admission. In a related matter, we must
VI. Withholding of the NIJ
                                                             decide whether the District Court properly
   Solicitation . . . . . . . . . . . . . . . . . . 48
                                                             took judicial notice that “human friction
    A. Standard of Review                                    ridges are unique and permanent
       and Applicable Law . . . . . . . . 49                 throughout the area of the friction ridge
                                                             skin, including small friction ridge areas,
    B. Discussion . . . . . . . . . . . . . . . . 51
                                                             and that . . . human friction ridge skin
                                                             arrangements are unique and permanent.”
                                                             App. 1472a. We conclude that the District
VII. Admission of Alleged
                                                             Court erred in taking judicial notice, but
   Prior Consistent Statements . . . . . 53
                                                             that the error was harmless.
                                                                 We also consider Mitchell’s contention
VIII. Conclusion . . . . . . . . . . . . . . . . 55          that the District Court erroneously
                                                             excluded from trial significant portions of
                                                             his proffered expert testimony on the
APPENDIX: Colloquies with the                                unre liability of late nt fin gerp rint
  District Court Regarding                                   identification. Portions of the colloquies
  Admissibility of Mitchell’s                                between the Court and counsel are less
  Proposed Experts. . . . . . . . . . . . . . 55             than pellucid, but we are satisfied that
                                                             what the Court really did was to operate on
                                                             a three-tier theory of what expert
BECKER, Circuit Judge.                                       testimony was admissible: allowing (1)
                                                             specific criticisms and (2) general
                 I. Introduction
                                                             reliability criticisms, but excluding (3)
   This appeal by Byron Mitchell from a                      testimony about whether latent fingerprint
judgment in a criminal case raises                           identification is a “science.” Within that
important questions concerning the                           framework, the exclusion of evidence that
admissib ility of latent fingerprint                         latent fingerprint identification is a science
identification evidence under Fed. R. Evid.                  was proper under Kumho Tire Co. v.
702. We adjudicate on the basis of a                         Carmichael, 526 U.S. 137 (1999).
voluminous record developed at a Daubert
                                                                 The final fingerprint-related issue
hearing, see Daubert v. Merrell Dow
                                                             concerns the putative withholding by the
Pharmaceuticals, Inc., 509 U.S. 579
                                                             government of a Department of Justice
(1993), and explore in considerable detail
                                                             solicitation for research proposals directed

                                                         3
at validating the reliability of latent                               First Trial and Appeal
f i n ge r p r int i d e n t if i c a ti o n . T h is
                                                                This case began in 1991 when two
solicitation, Mitchell contends, was not
                                                            men with handguns robbed an armored
only improperly and intentionally withheld
                                                            car employee of approximately $20,000
by the government in violation of its
                                                            as he entered a check cashing agency at
obligations under Brady v. Maryland, 373
                                                            29th Street and Girard Avenue in North
U.S. 83 (1963), but would have been
                                                            Philadelphia. The robbers then got into a
powerful evidence, not only substantively
                                                            beige car driven by a third person,
but also to impeach the government’s
                                                            engaging in gunfire with the armored car
expert witnesses who testified that latent
                                                            employees as they fled. The beige car,
fingerprint identification was a well-
                                                            which had been stolen about an hour
established discipline with a strong and
                                                            beforehand, was abandoned by the
well-verified foundation. The District
                                                            robbers roughly a mile from the agency.
Court concluded that the solicitation was
                                                            The government sought to prove at trial
not material under the “reasonable
                                                            that the robbers were William Robinson
probability of a different outcome”
                                                            (a/k/a “Bookie”) and Terrence Stewart
standard of Brady and its progeny. We
                                                            (a/k/a “T”), and that the getaway driver
agree.
                                                            was Mitchell. According to the
    The remaining issue on appeal is                        government, the robbery had a fourth
whether plain error was committed by the                    participant, Kim Chester, who knew of
admission of testimony that a key                           the plans, helped case the robbery site,
government witness gave a statement to                      and assisted the others in spending the
the FBI and testified at a prior proceeding.                proceeds of the robbery. Chester
Mitchell characterizes the admission of                     testified for the prosecution at Mitchell’s
this evidence as improper under the                         trial as an uncharged accomplice. Both
hearsay rules, Fed. R. Evid. 801, 802. We                   Robinson and Stewart died before trial,
conclude that testimony about the                           and thus Mitchell was the sole defendant.
existence of a statement is not itself a
                                                                Mitchell was charged with conspiracy
“statement”; that the testimony was not
                                                            to commit and commission of Hobbs Act
“offered . . . to prove the truth of the
                                                            robbery, 18 U.S.C. § 1951, and use of
matter asserted,” Fed. R. Evid. 801(c), and
                                                            and carrying a firearm during a crime of
thus not inadmissible under Fed. R. Evid.
                                                            violence, 18 U.S.C. § 924(c). In the first
802; and that, at all events, the plain error
                                                            trial, at which Mitchell was convicted of
standard is not met. We will therefore
                                                            all counts, the government introduced
affirm the judgment.
                                                            into evidence an anonymous note that
                                                            had been left in the front seat of the
                                                            abandoned beige car, apparently written
     II. Facts and Procedural History
                                                            by someone who observed the robbers
      A. The Offense and Mitchell’s                         exiting the beige car and getting into a

                                                        4
different car. The note read, “Light                        1. The Field of Latent
green ZPJ-254. They changed cars; this                     Fingerprint Identification
is the other car.” On appeal, we held the
                                                       Criminals generally do not leave
note to be inadmissible hearsay not
                                                   behind full fingerprints on clean, flat
subject to any exception in Fed. R. Evid.
                                                   surfaces. Rather, they leave fragments
803. United States v. Mitchell, 145 F.3d
                                                   that are often distorted or marred by
572 (3d Cir. 1998). In view of the
                                                   artifacts, terms we explain in the
limited other evidence connecting
                                                   margin.1 These “latent” prints—from the
Mitchell to the robbery—Chester’s
                                                   Latin lateo, “to lie hidden,” because they
testimony was questionable, no robbery
                                                   are often not visible to the naked eye
proceeds were ever linked to Mitchell,
                                                   until dusted or otherwise revealed— are
and the fingerprints recovered from the
                                                   the typical grist for the fingerprint
beige getaway car were identified as
                                                   identification expert’s mill. Testimony at
Mitchell’s but in poor condition—we
                                                   the Daubert hearing suggested that the
concluded that admission of the
                                                   typical latent print is a fraction—perhaps
anonymous note was not harmless error.
                                                   1/5th— of the size of a full fingerprint.
Id. at 579-80. Accordingly, we vacated
                                                   App. 435a-436a. A “full” fingerprint is
Mitchell’s conviction and remanded for a
                                                   familiar to anyone who has been
new trial. Id.
                                                   fingerprinted for identification or law
  B. Latent Fingerprint Identification             enforcement reasons: It is the print made
       and the Daubert Hearing                     by rolling the full surface of the fingertip
                                                   onto a fingerprint card or electronic
    Prior to the retrial, the District Court
                                                   fingerprint capture device. (These prints
conducted a lengthy Daubert hearing on
                                                   are, for obvious reasons, also referred to
the admissibility under Fed. R. Evid. 702
                                                   as “rolled prints” or “full-rolled prints.”)
of the government’s expert testimony
                                                   A full set of full-rolled fingerprints on a
(and Mitchell’s counter-experts) on the
                                                   card—as would be taken during a police
identification of fingerprints found on
                                                   booking, for example—is known as a
the gear shift lever and driver’s side door
                                                   “ten-print card.” Ten-print cards usually
of the beige getaway car. This hearing
                                                   also have space at the bottom of the card
was to adjudicate a major attack mounted
by Mitchell on the government’s
fingerprint evidence. As with any expert             1
                                                      In the jargon, artifacts are generally
testimony, some background in the field
                                                   small amounts of dirt or grease that
and an introduction to the jargon is
                                                   masquerade as parts of the ridge
helpful, and so we discuss the field of
                                                   impressions seen in a fingerprint, while
latent fingerprint identification in general
                                                   distortions are produced by smudging or
before turning to the particulars of the
                                                   too much pressure in making the print,
Daubert hearing.
                                                   which tends to flatten the ridges on the
                                                   finger and obscure their detail.

                                               5
for “flat impressions” or “plain                  where ridges terminate or bifurcate are
impressions,” where all four fingers of           often referred to as “Galton points,”
the hand are pressed at once onto the             whose eponym, Sir Francis Galton, first
card without rolling.                             developed a taxonomy for these points.
                                                  The typical human fingerprint has
    Rolled prints and latent prints alike
                                                  somewhere between 75 and 175 such
are subject to artifacts and distortions,
                                                  ridge characteristics. Level 3 detail
though the problems with latent prints
                                                  focuses on microscopic variations in the
are more acute because they are smaller,
                                                  ridges themselves, such as the slight
and left more carelessly than full-rolled
                                                  meanders of the ridges (the “ridge path”)
prints, and are left on surfaces that many
                                                  and the locations of sweat pores. This is
other fingers have also touched.
                                                  the level of detail most likely to be
Appellant Br. at 10-11. See Andre
                                                  obscured by distortions.
Moenssens et al., Scientific Evidence in
Civil and Criminal Cases, § 8.08 at 514               The FBI—the agency that made the
(4th ed. 1995) (“Many latent impressions          primary identification in this case—uses
developed at crime scenes are badly               an identification method known as ACE-
blurred or smudged, or consist of                 V, an acronym for “analysis, comparison,
partially superimposed impressions of             evaluation, and verification.” The basic
different fingers.”).                             steps taken by an examiner under this
                                                  protocol are first to winnow the field of
    Fingerprints are left by the depositing
                                                  candidate matching prints by using Level
of oil upon contact between a surface and
                                                  1 detail to classify the latent print. Next,
the friction ridges of fingers. The field
                                                  the examiner will analyze the latent print
uses the broader term “friction ridge” to
                                                  to identify Level 2 detail (i.e., Galton
designate skin surfaces with ridges
                                                  points and their spatial relationship to
evolutionarily adapted to produce
                                                  one another), along with any Level 3
increased friction (as compared to
                                                  detail that can be gleaned from the print.
smooth skin) for gripping. Thus toeprint
                                                  The examiner then compares this to the
or handprint analysis is much the same as
                                                  Level 2 and Level 3 detail of a candidate
fingerprint analysis. The structure of
                                                  full-rolled print (sometimes taken from a
friction ridges is described in the record
                                                  database of fingerprints, sometimes taken
before us at three levels of increasing
                                                  from a suspect in custody), and evaluates
detail, designated as Level 1, Level 2 and
                                                  whether there is sufficient similarity to
Level 3. Level 1 detail is visible with the
                                                  declare a match. In the final step, the
naked eye; it is the familiar pattern of
                                                  match is independently verified by
loops, arches, and whorls. Level 2 detail
                                                  another examiner, though there is some
involves “ridge characteristics”—the
                                                  dispute about how truly independent this
patterns of islands, dots, and forks
                                                  verification is.
formed by the ridges as they begin and
end and join and divide. The points                  The standards used by the FBI at the

                                              6
evaluation stage of the ACE-V protocol          has the advantage of allowing an
are somewhat less concrete than the             examiner to find a match in situations
numerical descriptions found in                 where an examiner using a strict point-
television police dramas that extol             based standard would not find one, this
“twenty-point matches” and the like. An         flexibility comes at the price of
n-point match refers to a match between         substituting a degree of subjectivity for
an unknown latent print and a known full        an objective numerical standard.
print in which the examiner has
                                                        2. The Daubert Hearing
identified n corresponding Galton points
in the correct geometry relative to one             The District Court held a five-day
another. A number of jurisdictions both         hearing pursuant to Daubert v. Merrell
outside the United States and within            Dow Pharmaceuticals, Inc., 509 U.S.
seem to rely on a system where a                579 (1993), to rule on the admissibility
minimum number of corresponding                 of the government’s and M itchell’s
points must be found before a match may         proposed expert testimony. The record
be declared, irrespective of Level 3            of this marathon hearing alone comprises
detail. See, e.g., 2 Paul C. Giannelli &        nearly one thousand pages of testimony
Edward Imwinkelried, Scientific                 and a similarly voluminous array of
Evidence § 16-7(A), at 768 (3d ed. 1999)        exhibits. The government called six
(“In France, the required number [of            witnesses (plus one rebuttal witness), and
points for a match] used most often is 24       Mitchell, four. The District Court found
while the number is 30 in Argentina and         all the offered expert witnesses to be
Brazil.”). Such jurisdictions are said to       qualified in their respective fields, and
use a “point system.” On the other hand,        neither party raises a challenge to the
Canada does not have a minimum point            qualifications, as such, of the witnesses.
threshold for identification, and the           Rather, both sides’ issues lie with the
United Kingdom recently eliminated a            content of the testimony accepted by the
minimum point threshold. See United             District Court. We briefly describe the
States v. Llera Plaza, 188 F. Supp. 2d          areas of testimony of each of the
549, 569-70 (E.D. Pa. 2002) (quoting            witnesses, starting with the government’s
Lord Lester of Herne Hill’s colloquy            witnesses.
with Lord Rooker). The alternative
                                                      a. The Government’s Experts
approach—which gained favor with the
FBI in the late 1940s, App. 378a— is to             Steven Meagher, an FBI special
use a combination of quantity and               agent, testified at the hearing about Level
quality: If ridge characteristics are           1, Level 2, and Level 3 detail (as
abundant, then the quality of Level 3           described above), and other aspects of
detail is unimportant; but a paucity of         fingerprint identification. With regard to
Galton points can be compensated for by         the FBI’s practices, technology, and
high-quality Level 3 detail. While this         operations, he testified about the ACE-V

                                            7
protocol; that the FBI does not rely on a         cellular bases for the permanence of
minimum “points” standard for matching            friction ridge arrangements. Ed German,
fingerprints (and why it does not); and           of the United States Army Criminal
about the Automated Fingerprint                   Investigation Laboratory, testified to the
Identification System (“AFIS”) computer           lack of similarity found between
system (which automates some                      corresponding fingerprints of identical
preliminary aspects of fingerprint                twins, a conclusion established by his
matching). Meagher also described a               own research on identical twins and
survey (which we discuss, infra) of state         confirmed by other studies of identical
fingerprint identification agencies that he       twins.
prepared and circulated for the purpose
                                                      The government also offered David
of demonstrating that the fingerprint
                                                  Ashbaugh, of the Royal Canadian
match in this case was, by wide
                                                  Mounted Police, who testified broadly
consensus, correct. He also described an
                                                  about the development, comparison, and
experiment (which we also discuss,
                                                  identification of friction ridge skin and
infra) designed and run in cooperation
                                                  impressions. Like the other government
with the contractor for the FBI’s AFIS
                                                  witnesses who were examined on the
computer system, Lockheed Martin, that
                                                  matter (viz., Agent German, Agent
would search a portion of the AFIS
                                                  Meagher, and Dr. Budowle) he
database for identical fingerprints.
                                                  responded that it was his opinion that
Donald Zeisig, of Lockheed Martin, and
                                                  friction ridge arrangements were unique
Bruce Budowle, a statistician and
                                                  (the “uniqueness proposition”) and
population geneticist with the FBI, were
                                                  permanent (the “permanence
also involved in this experiment, and
                                                  proposition”), and that positive
both testified at the Daubert hearing.
                                                  identifications can be made from
Zeisig also testified in greater detail
                                                  fingerprints containing sufficient
about the technical background of the
                                                  quantity and quality of ridge detail. Dr.
AFIS computer system.
                                                  Babler also opined that friction ridge
    The government offered two                    arrangements are unique and permanent.
witnesses focusing principally on the             These propositions were the foundation
biological aspects of fingerprints. Dr.           of the government’s argument that latent
William Babler, of Marquette University,          fingerprint identification evidence
testified about the prenatal development          satisfies Daubert.
of friction ridges, opining that unique
                                                      The government conducted two
arrangements of friction ridges develop
                                                  experiments in anticipation of the
in the womb within a matter of months
                                                  Daubert hearing: (1) a survey of state
after conception. He also testified to the
                                                  fingerprint identification agencies asking
medical community’s accepted
                                                  them, inter alia, if they could match the
understanding of the anatomical and
                                                  latent prints in this case to Mitchell’s ten-

                                              8
print card; and (2) a search for identical           Part B of the survey was designed as
fingerprints using data in the AFIS              a demonstration of the ACE-V
computer system.2 The specifics of these         identification protocol, and it used the
experiments bear on their relevance as           latent fingerprints at issue in this case.
expert evidence, and so we describe them         Part B offered each agency photographs
in some detail.                                  of the two latent prints and of Mitchell’s
                                                 ten-print card. Agencies were asked first
    For purposes of this case, Meagher
                                                 to attempt to identify the ten-print card
created a survey packet that was sent out
                                                 using their own computerized fingerprint
to the principal law enforcement agency
                                                 database. It is common practice (for
of each of the fifty states, plus the
                                                 efficiency’s sake) to “filter” the database
District of Columbia, Canada’s Royal
                                                 in making an identification, by
Canadian Mounted Police, and the
                                                 considering only the subset of records
United Kingdom’s Scotland Yard. The
                                                 (by race, sex, date of birth, etc.) that are
survey contained three parts: Part A
                                                 likely to result in a match. Meagher
involved questions about whether the
                                                 requested that agencies not filter their
agency currently accepts fingerprints as a
                                                 database for this test, to ensure that the
means to individualize (i.e., make an
                                                 prints were compared against the
identification), and about whether the
                                                 maximum possible number of print
agency regards fingerprints as unique
                                                 records. Of the forty-seven agencies that
and permanent. All fifty-three recipients
                                                 responded, the only match that was found
responded in the affirmative to both
                                                 was in Pennsylvania, where Mitchell’s
queries. Joint Supp. App. at 56. Part C
                                                 ten-print record was already on file.
inquired whether the agencies had ever
found two individuals to have the same                In the second segment of Part B,
fingerprint; the response was,                   agencies were asked to attempt to match
unanimously, no. Part C also revealed            the latent prints to their existing records.
that, in the aggregate, the ten-print            The only “hits” were made by the two
records of nearly 70 million                     agencies (Mississippi and South Dakota)
individuals—or about 700 million                 that inputted the ten-print card supplied
fingerprints—have been examined                  by Meagher into their system prior to
during the course of the agencies’               running the search (and thus raised the
operations.                                      likelihood of a match). Pennsylvania
                                                 was unable to run this search because of
                                                 equipment troubles, but represented that
  2
   We note that these experiments—and,           it undoubtedly would have made a match
indeed, much of the expertise marshaled          if its system were fully operative.
both by the government and by
                                                     The third segment of Part B asked
Mitchell—required resources and
                                                 agencies to perform manual comparisons
preparation that are far from typical in
                                                 of the latent prints to the ten-print card
federal criminal trials.

                                             9
provided to them. This survey was                 than M itchell; and in the third segment,
single-blind, i.e., while Meagher knew            no agency matched a latent print to any
that the latent prints had been identified        finger other than the one to which the
as Mitchell’s, knew that the ten-print            FBI had matched the latent print.
card was Mitchell’s, and believed the
                                                      The second experiment conducted by
latents could be matched to the ten-print
                                                  the government’s experts was known as
card, none of the survey recipients was
                                                  the “50/50” experiment. This was an
told any of this. Roughly two thirds of
                                                  empirical examination by computer of a
the agencies responded to this portion.
                                                  subset of the FBI’s fingerprint records to
Over three quarters of the responding
                                                  search for pairs of very similar
agencies matched both prints consistently
                                                  fingerprints taken from different sources.
with the FBI’s identification. Of those
                                                  Finding such a pair would undermine the
that did not match both prints, half
                                                  uniqueness proposition, see supra page
matched only one print consistent with
                                                  8, that the government’s other experts
the FBI’s identification, and half
                                                  testified was well-established. The
matched neither print. In followup
                                                  experiment data set was a set of fifty
communications, the FBI either
                                                  thousand prints (out of about 340 million
convinced these non-identifying agencies
                                                  in the FBI’s AFIS computer system).
that a match did exist and they so
                                                  Rather than select these fifty thousand
acknowledged (though it took the strong
                                                  prints at random, the experimenters
suggestion of annotated blown-up
                                                  (Agent Meagher, Mr. Zeisig, and Dr.
photographs of the prints), or otherwise
                                                  Budowle) took them from the subset of
established reasons for the non-
                                                  prints that were from white males and
identification (e.g., the examiner deemed
                                                  exhibited a left-sloped whorl pattern at
the quality of the supplied photographs to
                                                  Level 1 detail. The experimenters also
be too poor to make an identification,
                                                  ensured that multiple prints from the
and would have preferred an original; or
                                                  same person were included in the set of
the comparison was performed by an
                                                  fifty thousand. The effect of these
inexperienced examiner, and on review,
                                                  restrictions was to bias, from the outset,
a senior examiner was able to find a
                                                  the prints toward being more similar (and
match).
                                                  hence more likely to contain a matching
    A critical summary point is that no           pair).3
agency ever registered a “false” positive
(i.e., a positive match that contradicted
                                                    3
the FBI’s result): In the first segment of           An analogy may illustrate this biasing
Part B, no agency matched Mitchell’s              effect: Consider a large multicolored pile
ten-print card to someone else’s ten-print        of crayons produced by mixing several
card; in the second segment, no agency            boxes of crayons. If one chooses a dozen
matched the latent prints to anyone other         “dark” crayons at random, one is more
                                                  likely to find among those dozen crayons

                                             10
    In the first part of the test, a computer        the world other than the person who
program—using the same algorithms as                 deposited the print at approximately one
the FBI’s AFIS computer system uses to               in ten to the eighty-sixth power (i.e., 1
match prints—attempted to match each                 chance in 1 followed by 86 zeroes), a
of the fifty thousand prints against the             very low probability indeed.
full set of fifty thousand prints (hence the
                                                         Apparently recognizing that analysis
moniker “50/50”). Thus, a total of
                                                     of full-rolled prints was not particularly
50,000 x 50,000, or 2.5 billion,
                                                     germane to the question of the
comparisons were performed. For each
                                                     identification of latent partial prints, the
print, the best match was, by an
                                                     government’s witnesses conducted a
enormous margin, itself.4 Based on
                                                     second experiment. From each of the
statistical extrapolation from these
                                                     fifty thousand prints, they had the
results, the experimenters put the chances
                                                     computer create a simulated latent print
of a single full-rolled print matching
                                                     (referred to as a “pseudolatent print” or
another full-rolled print from anyone in
                                                     simply a “pseudolatent”), as might be
                                                     recovered from a crime scene, by taking
a pair of exactly the same color than one            only about a fifth of the full-rolled print.5
is to find such a pair if one selects a              They then ran a similar fifty thousand-
dozen crayons at random from the pile at             by-fifty thousand comparison to see how
large.                                               strongly the pseudolatent prints matched
                                                     full prints from which they had not been
  4
    We note that the comparisons were                derived. With one exception which we
run for each print against all 50,000                identify in the margin, each pseudolatent
prints, not against the other 49,999                 was a strong match with the full print
prints. Thus, every print was assured of             from which it had been derived, by a
having a tautologically perfect match                wide margin over any other full print. 6
(i.e., itself) that could serve as a baseline
for statistical comparisons. This was
done to quantify statistically how much                5
                                                        The pseudolatents were 21.7% of the
better the perfect match was than all                areal size of the full print, a figure which
other comparisons. The cases in which a              Meagher determined was the average
print was a strong match for a print other           size of a set of actual latent prints that he
than itself were subsequently discovered             had previously used for testing.
to be the product of a double-entry in the
                                                       6
database (i.e., a set of prints from the                Meagher explained that the sole
same person had been entered into the                exception was caused by a poorly created
database twice). The experimenters                   fingerprint card. On the card in question,
testified that the system’s ability to catch         the flat impression had strayed out of the
this unintentional duplication bolstered             region on the card designated for the flat
their confidence in its capabilities.                impression, and had left part of a print in

                                                11
Statistical computations based on this              described which agencies adhered to a
experiment put the probability of a latent          point system, how many points they
partial print matching the full print of            required to make an identification, and
anyone in the world other than the person           noted that the agencies that did not find a
who deposited the print at approximately            match generally reported that they had
one in ten to the sixteenth power (i.e., 1          found an insufficient number of points of
in 10,000,000,000,000,000), also a very             similarity between the latent print and the
low probability.                                    ten-print card. Ms. Peterman also
                                                    reported on the varying levels of
          b. Mitchell’s Experts
                                                    experience and accreditation of the
    Mitchell’s first witness at the                 examiners who performed the
Daubert hearing was Marilyn Peterman,               comparisons for the agencies.
an investigator with the Defender
                                                        The first of Mitchell’s three major
Association of Philadelphia who took
                                                    experts was Dr. David Stoney, the
statements from those fingerprint
                                                    director of the McCrone Research
examiners at state agencies who had
                                                    Institute in Chicago, a not-for-profit
failed to match the latent prints to
                                                    organization engaged in teaching and
Mitchell’s ten-print card in completing
                                                    research in the forensic sciences. Dr.
Part B of the FBI’s survey. 7 She
                                                    Stoney was, in Mitchell’s counsel’s
                                                    words at the Daubert hearing, offered as
the box designated for one of the rolled            an expert “with respect to whether a
impressions. Consequently, one of the               fingerprint examiner’s conclusion that a
boxes for a rolled print actually                   latent fingerprint came from a particular
contained a rolled print, plus a fair-sized         individual is a scientific determination.”
piece of a flat print of a different finger.        App. 763a. The nucleus of Dr. Stoney’s
As a result, the strong match found by              opinion is summarized in a portion of his
computer was actually a match between               testimony at the hearing:
the pseudolatent print and the stray                       The determination that a
portion of the flat print. As with the                 fingerprint examiner . . . makes
database error discovered in the first                 when comparing a latent
stage of the 50/50 experiment, the                     fingerprint with a known
experimenters found this mistaken match                fingerprint, specifically the
to be evidence of the robustness of their              determination that there is
computer system.                                       sufficient basis for an absolute
  7                                                    identification, is not a scientific
    It appears that, in the interest of
efficiency, the parties consented to
introducing hearsay from the examiners
who completed the FBI                               Meagher for the government, and
survey—primarily through Agent                      through M s. Peterman for Mitchell.

                                               12
       determination. . . . It is a                that it is wrong.” App. 781a.
       subjective determination
                                                       Dr. Stoney also criticized the 50/50
       without objective standards to
                                                   experiment. He noted first the
       it.
                                                   undisputed proposition that two
       Now, by “subjective” I mean                 impressions of the same friction ridges
   that it is one that is dependent on             will not be identical—artifacts and
   the individual’s expertise,                     distortions will invariably appear.8 In
   training, and the consensus of                  that experiment, see supra page 10 and
   their agreement of other                        note 4, a fingerprint was compared
   individuals in the field. By “not               against itself and 49,999 other
   scientific” I mean that there is not            fingerprints taken from the FBI’s
   an objective standard that has                  database. Hence, Dr. Stoney explained,
   been tested; nor is there a                     the simulated task modeled by the 50/50
   subjective process that has been                experiment was that of matching Print 1
   objectively tested. It is the                   and (the identical) Print 1 of Finger A.
   essential feature of a scientific               In his submission, the task in real-world
   process that there be something to              fingerprint identification is one of
   test, that when that something is               matching Print 1 and Print 2 of Finger A.
   tested, the test is capable of                  Thus, Stoney reasoned, the 50/50
   showing it to be false.                         experiment as executed assessed how
                                                   much better a match is found between
App. 765a. Dr. Stoney opined that the
                                                   Print 1 and (the identical) Print 1 of
evaluation phase of the ACE-V protocol
                                                   Finger A than between Print 1 of Finger
requires the examiner to make a binary
                                                   A and Print 1 of Finger B. A more
determination: Either two prints match
                                                   meaningful version of the 50/50
sufficiently to make an absolute
                                                   experiment, Dr. Stoney explained, would
identification, or they do not. This Dr.
Stoney contrasted to certain other
forensic disciplines in which                        8
                                                      This point also underpins Dr.
intermediate determinations are
                                                   Stoney’s more general criticism of the
expressed in probabilistic terms. Dr.
                                                   discipline of latent fingerprint
Stoney further objected to any
                                                   identification: Dr. Stoney agreed that
characterization of fingerprint
                                                   human friction ridges are unique and
identification as having a “zero error
                                                   permanent, including small areas, App.
rate,” explaining that “something with a
                                                   914a, but suggested that this alone is
zero error rate cannot be a science . . . .
                                                   unhelpful on the question whether prints
[I]f we start out saying fundamentally
                                                   are identifiable, because fingerprints are
something can’t be shown to be wrong,
                                                   so subject to distortion and the forensic
then it means that we can’t test it. If we
                                                   identification process is so flawed, App.
can’t test it, . . . there’s no way to show
                                                   917a-920a.

                                              13
have asked how much better a match is            opinion as to whether latent fingerprint
found between Print 1 and Print 2 of             examination meets the criteria of
Finger A than between Print 1 of Finger          science.” App. 813a-814a. Like Dr.
A and Print 1 of Finger B.9                      Stoney, Prof. Starrs testified that it was
                                                 his opinion that “[the current practice of]
   Dr. Stoney further criticized the
                                                 fingerprint comparison and analysis is
method used to create the pseudolatent
                                                 not predicated on a sound and adequate
prints in the second part of the
                                                 scientific basis for purposes of making
experiment. Dr. Stoney explained that it
                                                 an individualization to one person from a
was established in the literature that
                                                 fragmentary print to the exclusion of all
simple masking, and even computer-
                                                 other persons in the world.” App. 828a.
generated blurring, of full prints cannot
adequately simulate real latent partial              To support his conclusion, Prof.
prints. Dr. Stoney’s ultimate conclusion         Starrs highlighted five aspects of
was that these experimental defects              fingerprint examination that in his
rendered the probabilities derived by the        opinion were inconsistent with a
government experts meaningless.                  scientific discipline: (1) claims to
                                                 “absolute certainty”; (2) “the failure to
    The defense’s second principal expert
                                                 carry out controlled empirical-data-
was James Starrs, a professor in the
                                                 searching experimentation”; (3) a failure
Department of Forensic Sciences and the
                                                 to engage in error-rate analysis; (4) the
law school at George Washington
                                                 lack of uniformity, objectivity,
University. Prof. Starrs has had a long
                                                 systematization, and standards; (5) “a
career at the intersection of law and
                                                 failure to show a due regard to a
forensic science; indeed, an article by
                                                 vigorous and uncompromising
Prof. Starrs was cited by the Supreme
                                                 skepticism.” App. 828a-829a. In
Court in Daubert. See Daubert, 509 U.S.
                                                 elaborating on each of these points, Prof.
at 591 (citing James E. Starrs, Frye v.
                                                 Starrs gave illustrations. For example, he
United States Restructured and
                                                 briefly described a case of false
Revitalized: A Proposal to Amend
                                                 identification; he described some of the
Federal Evidence Rule 702, 26
                                                 subtle and non-systematized aspects of
Jurimetrics J. 249, 258 (1986)). Prof.
                                                 analyzing Galton points, see supra page
Starrs was offered as an “exert [sic] in
                                                 6, and he criticized some aspects of the
forensic science qualified to provide an
                                                 training of new fingerprint examiners.
                                                 Prof. Starrs also explained that he viewed
                                                 the government’s testimony and
  9
   We note, however, that such an                experiments involving full-rolled prints
experiment was beyond the immediate              as irrelevant to the question of latent
capability of the government because its         partial print identification. However,
database, by design, does not have               under cross-examination Prof. Starrs was
multiple prints from the same finger.

                                            14
agnostic on whether the propositions he            group, a notable difference, Dr. Cole
challenged as unproven might, in the               explained, between fingerprint
end, be scientifically supportable.                identification and, say, psychiatric
                                                   diagnosis. Dr. Cole also opined that
    Mitchell’s final expert at the
                                                   fingerprint identification was not
Daubert hearing was Simon Cole, a post-
                                                   scientific because, inter alia, the
doctoral fellow at Rutgers University,
                                                   fingerprint identification community had
with expertise in “science and technology
                                                   not engaged in studies that attempt to
studies with particular expertise
                                                   falsify the discipline’s premises; did not
regarding the fingerprint profession.”
                                                   engage in anonymous, critical (as
App. 939a. Dr. Cole had no experience
                                                   opposed to positive) peer review; and did
in latent print examination. From his
                                                   not recognize error rates.
research, Dr. Cole identified four
explanations for the widespread                              c. Mitchell’s Exhibits
acceptance of fingerprint identification
                                                       As part of the Daubert hearing,
evidence: First, from the earliest days of
                                                   Mitchell also introduced several hundred
the discipline, fingerprint examiners have
                                                   pages of documentary exhibits,
developed an “occupational norm of
                                                   principally journal articles and other
unanimity,” i.e., examiners would not
                                                   excerpts from the corpus of literature
publicly disagree with one another about
                                                   criticizing the practice and theory of
an identification. Second, in terms of the
                                                   latent fingerprint identification, authored
way in which the fingerprint examination
                                                   by his experts and by others. Also
community handled the instances of
                                                   introduced were the results of some
known misidentification, such cases
                                                   fingerprint proficiency tests, which
would, Dr. Cole explained, be blamed on
                                                   suggested that examiners were prone to
practitioner incompetence or
                                                   both false negatives (i.e., declaring a
misconduct.10 Third was a simple lack of
                                                   nonidentification where an identification
judicial scrutiny— a sort of snowball
                                                   should have been made) and false
effect of string citations to cases and
                                                   positives (i.e., making an incorrect
treatises approving fingerprint
                                                   identification). App. 3014a, 3063a.
identification evidence. Fourth was a
                                                   Finally, the defense introduced a survey
lack of an organized counter-expert
                                                   of jurors that found that 93% agreed with
                                                   the statement “fingerprint identification
  10                                               is a science” and 85% agreed with the
    Dr. Cole noted that both of these first
                                                   statement “fingerprints are the most
two explanations were well illustrated by
                                                   reliable means of identifying a person.”
the FBI’s survey: Agent Meagher
                                                   App. 3047a-3048a.
followed up with each agency until a
match was agreed to, or otherwise                   d. The Government’s Rebuttal Witness
identified inexperienced examiners as the
                                                      To respond to defense testimony
source of nonidentifications.

                                              15
regarding the “occupational norm of                 specialized knowledge.
unanimity” among fingerprint examiners,
                                                                   ***
the government offered Pat Wertheim, a
fingerprint examiner, as a rebuttal                     Further, pursuant to this
witness. Wertheim testified that he and             Court’s ruling, this Court finds
David Grieve (who was present but did               that the government’s fingerprint
not testify) were involved as defense               evidence is highly probative and
experts in a case of false identification in        substantially outweighs any
the United Kingdom. Based on their                  danger of unfair prejudice to
examination of the evidence in that                 defendant.
case—which was both independent of
                                                                   ***
the U.K. authorities and independent of
each other—they testified, in opposition                We find that the government’s
to the prosecution’s expert, that the latent        expert witness—at this juncture it
print in that case could not be matched to          appears it’s Duane Johnson [sic
the defendant. The purpose of this                  Wilbur Johnson?], an FBI latent
testimony was to counter Dr. Cole’s                 fingerprint examiner who testified
contentions about the occupational norm             first in the previous trial, and
of unanimity within the discipline.                 those other latent experts that
                                                    testified in the Daubert
  3. The District Court’s Daubert and
                                                    hearing—are capable of testifying
Judicial Notice Rulings
                                                    in these proceedings, and in that
    Two months after the Daubert                    regard, I am not going to limit the
hearing concluded, the District Court               defense from calling latent
ruled from the bench on the admissibility           fingerprint experts to testify as to
of expert testimony at trial. In relevant           the ability not to identify or make
part, the Court stated:                             an identification from the
                                                    fingerprints, and I am also going
       The matter presently pending
                                                    to allow the defense to call any
   before the Court is in reference to
                                                    latent fingerprint expert who
   the defense motion to exclude the
                                                    indicates that fingerprints are not
   government’s fingerprint
                                                    reliable sources of information.
   identification evidence, and based
   on the Daubert hearing and also                      Only for that limited purpose
   Kumho, this Court denies the                     and I am going to exclude
   defendant’s motion. And                          evidence as to whether or not
   pursuant thereto, this court is not              [latent fingerprint identification
   going to make a determination as                 is] scientific, technical, or
   to the particular area of scientific             whatever. It has no relevance
   knowledge and technical or                       before the jury here. The question


                                               16
       is whether or not an                           called upon, we will instruct the
       identification can be made by                  jury as so.
       examination of
                                                   App. 1031a (repunctuated for clarity).
       fingerprints—latent
                                                   The Court so instructed the jury. On
       fingerprints.
                                                   appeal, Mitchell asserts that it was error
App. 1029a-1031a (repunctuated for                 for the District Court to take judicial
clarity).                                          notice of these matters.
    As we understand the ruling, the                      C. Mitchell’s Second Trial
District Court held that the government’s
                                                          1. The Government’s Case
expert witnesses and M itchell’s expert
witnesses could testify, but with the                  The case against Mitchell rested on
caveat that the latter could not testify to        eleven lay witnesses and two experts.
the question whether latent fingerprint            The government’s star witness was
identification is a “science.” This ruling         Bookie’s girlfriend, Kim Chester. Ms.
forms at least the baseline of two of              Chester testified that she was present
Mitchell’s issues on appeal: the                   when Bookie and T were planning the
admission of government experts, and               robbery, and that she helped Bookie
the restriction of his own experts. The            watch the comings and goings of the
Court again discussed the admissibility            armored car in the weeks before the
of the defense’s expert witnesses in a             robbery. Ms. Chester said that she and T
colloquy with counsel immediately                  first met Mitchell and his wife at
before jury voir dire, an exchange that            Mitchell’s house, where she heard
we will discuss in greater detail, infra           Mitchell and T discussing plans for the
Part IV.                                           robbery. Mitchell’s wife, Anita, invoked
                                                   her spousal privilege and did not testify.
    Immediately following its ruling on
                                                   Eileen Lambert, T’s girlfriend at the
the admissibility of expert testimony, the
                                                   time, testified that she also witnessed
District Court addressed what would
                                                   meetings between T and Mitchell.
become another ground of Mitchell’s
appeal. Again from the bench, the Court                Ms. Chester testified that the night
ruled:                                             before the robbery, Mitchell, Bookie, and
                                                   T discussed the need to obtain a stolen
   This Court will take judicial
                                                   car to use in the robbery. She explained
   notice that human friction ridges
                                                   that the next morning—September
   are unique and permanent
                                                   12th—Bookie, T, and Mitchell drove her
   throughout the area of the friction
                                                   to work. She described how M itchell
   ridge skin, including small friction
                                                   and Bookie were arguing about what car
   ridge areas, and further that
                                                   to use in the robbery—the car they were
   human friction skin arrangements
                                                   in was Mitchell’s wife’s car, and he did
   are unique and permanent, and if

                                              17
not want to use it in the robbery. Ms.            from the driver’s side door handle—that
Chester testified that they dropped her           he later identified as matching Mitchell’s
off at her work, and that when she next           ten-print card as the right and left
spoke to Bookie, he indicated that they           thumbs, respectively.
had gone through with the planned
                                                      Mitchell was arrested the afternoon of
robbery. At that time, he had a
                                                  September 12th. Special Agent Kevin
substantial amount of cash, some of
                                                  Mimm and Special Agent Daniel
which he used to purchase a car and
                                                  Murphy, both of the FBI, testified to the
redeem several pieces of jewelry from a
                                                  circumstances of the arrest. They
pawn shop.
                                                  explained how they had been conducting
    Alma Shaw testified about her car             surveillance operations in Philadelphia as
being stolen the morning of September             a result of a number of armored car
12th. Emanuel Glover and Vernon                   robberies; Agent Murphy was in charge
Muse, the armored car guards, and Kim             of these operations. Agent Mimm
Kover-Jacobs, the check cashing agency            testified that while he was engaged in
manager, testified about the robbery              covert surveillance of Mitchell and
itself. Messrs. Glover and M use both             tailing Mitchell’s car, Mitchell began to
identified Ms. Shaw’s car as the getaway          flee; Mimm described how he chased
car; also, a fragment of the getaway car’s        Mitchell at high speed for several blocks,
license plate was noted by a bystander,           and was ultimately able to stop him.11
Regan Wiggins, and this fragment was              Mitchell was arrested, and $1400 in five
consistent with Ms. Shaw’s car’s license          and ten dollar bills was recovered from
plate.                                            him. This currency was never identified,
                                                  however, as having been part of the
    Laura Barnett, a Philadelphia police
                                                  armored car delivery.
officer, testified that she recovered Ms.
Shaw’s car shortly after the robbery. It              Agent Meagher returned to testify at
was found (with a bullet hole through the         trial about many of the matters brought
trunk) a few blocks from the check                out by the government at the Daubert
cashing agency. FBI Special Agent                 hearing. He discussed the embryology of
Donald Halfpenny testified that Ms.               friction ridge skin, the fingerprints of
Shaw’s car had been secured by the                identical twins, and the biological basis
Philadelphia police at the time he took
control of it. Wilbur Johnson, an FBI
fingerprint examiner whom the Court                 11
                                                      The anonymous note that was the
qualified as an expert, testified that in
                                                  subject of the previous appeal in this case
Ms. Shaw’s car he found, photographed,
                                                  was the critical link: That note connected
and preserved two latent
                                                  the robbery getaway car to Mitchell’s
fingerprints—one from the gearshift
                                                  own car, allowing the FBI to monitor and
knob on the steering column, and one
                                                  capture Mitchell so quickly.

                                             18
for the permanence of fingerprints. He             to identify one or both of the latent prints
described how latent prints are left and           as belonging to M itchell. 12
how they are processed by examiners,
                                                       Mitchell also cross-examined the
and the various conclusions that
                                                   government’s experts, Agents Johnson
examiners can draw from a comparison
                                                   and Meagher. Cross-examination of
of prints. During M eagher’s testimony,
                                                   Johnson concentrated on questions about
the government invoked the Court’s
                                                   his presentation to the jury of the
promise to take judicial notice of the
                                                   fingerprints he matched— Johnson’s
uniqueness of small areas of friction
                                                   demonstrative exhibits identified only
ridge skin. The government also read a
                                                   nine points of Level 2 similarity between
stipulation detailing some of the results
                                                   the latent prints from the car and
of the survey that Meagher testified
                                                   Mitchell’s ten-print card, despite
about at the Daubert hearing, and the
                                                   Johnson’s and Meagher’s claims of a
prosecutor examined Meagher regarding
                                                   greater number of similarities. Through
the agencies that did not make a positive
                                                   cross-examining Agent Johnson,
identification of the latent prints.
                                                   Mitchell also probed the existence and
Meagher then demonstrated to the jury in
                                                   maintenance of minimum-point standards
some detail his use of the ACE-V
                                                   and other quality-control measures at the
technique in matching the latent prints to
                                                   FBI in particular, and in the discipline
Mitchell’s ten-print card. He stated
                                                   more generally. Cross-examination of
definitively that the fingerprints from the
                                                   Agent Meagher ranged into more general
beige car matched Mitchell’s ten-print
                                                   considerations, most notably the limited
card. Agent Johnson also stated
                                                   studies performed specifically to
definitively that he had matched the
                                                   establish an error rate for fingerprint
latent prints from the beige car to
                                                   identification, and the limited means for
Mitchell’s ten-print card, though he did
                                                   detecting errors in particular
not give an in-depth demonstration to the
                                                   examinations. Meagher was also cross-
jury as Agent Meagher did.
         2. Mitchell’s Case and
                                                     12
          Cross-Examination of                         These witnesses (and their states)
        the Government’s Experts                   were: John Otis (Maine); Janice
                                                   Williams and Michael McSparrin
    The entirety of Mitchell’s case was
                                                   (Mississippi); Ralph Turbyfill
the testimony of individuals at state
                                                   (Arkansas); Donald Lock (Missouri);
agencies who examined or supervised the
                                                   Russell McNatt, Jr. (Delaware);
examination of the latent prints sent by
                                                   Raymond York (Idaho); John Artz
Agent M eagher in the survey.
                                                   (Nevada); Janice Reeves (Louisiana);
Specifically, Mitchell called thirteen
                                                   and Richard Higgins, Edward Pelton,
latent fingerprint experts from nine
                                                   Robert McAuley, and James Ruszas
states, all of whom were initially unable
                                                   (New York).

                                              19
examined on his highly suggestive                   of the solicitation . . . admitted . . . [to]
follow-up communications to those state             serious shortcomings in fingerprinting as
agencies that did not match Mitchell’s              it has been done up to this time.” App.
prints in the survey.                               2325a.
       D. Withholding of the NIJ                        Moreover, Mitchell suggested that
       Solicitation and Mitchell’s                  even the government regarded the
            Post-Trial Motion                       solicitation as material. His most
                                                    damaging evidence came from Dr.
    On February 7, 2000, the jury
                                                    Richard Rau of the NIJ, who coordinated
returned a verdict of guilty on all counts.
                                                    the drafting of the solicitation. Rau
Mitchell’s May 15, 2000 motion for a
                                                    testified to conversations at a September
new trial pursuant to Fed. R. Crim. P. 33
                                                    1999 meeting among himself, Donald
was founded on the discovery of a
                                                    Kerr (the Assistant Director of the FBI in
research proposal solicitation released by
                                                    charge of the FBI crime laboratory),
the National Institute of Justice (an arm
                                                    David Boyd (the Deputy Director of the
of the United States Department of
                                                    NIJ), and others. Rau claimed that at that
Justice) entitled Forensic Friction Ridge
                                                    meeting Kerr and Boyd agreed to
(Fingerprint) Examination Validation
                                                    withhold release of the solicitation until
Studies (the “solicitation”). The
                                                    the end of Mitchell’s trial. In response to
solicitation sought proposals for research
                                                    Dr. Rau’s testimony, the government
studies on “validation of the basis for
                                                    called Kerr, Boyd, and the other
friction ridge individualization and
                                                    individuals at the meeting to testify that
standardization of comparison criteria.”
                                                    Dr. Rau’s account of the delay in
App. 3078a. Creation of the solicitation
                                                    releasing the solicitation was incorrect
had been underway before Mitchell’s
                                                    and that the delay was caused by
trial, but the solicitation was not released
                                                    budgetary issues.
until March 2000—after Mitchell’s trial
had concluded.                                          The District Court denied M itchell’s
                                                    motion, reasoning that the solicitation
    The District Court held a four-day
                                                    was not material for two independently
hearing to take testimony and receive
                                                    sufficient reasons: First, the solicitation
exhibits on the creation and import of the
                                                    would not have been admissible at trial
solicitation. At that hearing, Mitchell
                                                    because attacks on the reliability of latent
established that Agent Meagher (as well
                                                    fingerprint identification were not
as some of the government’s other
                                                    permitted at trial based on the Court’s
witnesses at the Daubert hearing) had
                                                    Daubert ruling; and second, the
been involved in drafting the solicitation.
                                                    solicitation was “not meant to set forth
Prof. Starrs testified that he regarded the
                                                    the state of the current research” and so
solicitation as “a bolt out of the blue”
                                                    its “claimed impeachment value . . .
that suggested to him “that the sponsors
                                                    either during the trial or for Daubert

                                               20
purposes is questionable at best.” App.          lay witness, Ms. Chester. We will
12a-13a. On appeal, the government               address each of these contentions in turn.
disclaims the first ground, but defends
the District Court’s ruling on the second
ground, as well as on alternative grounds               III. Admissibility of the
not reached by the District Court.                   Government’s Expert Testimony
            E. This Appeal                                A. Standard of Review
    The District Court had jurisdiction              The parties disagree about the
over this case under 18 U.S.C. § 3231.           standard of review we should apply in
Mitchell filed a timely appeal from the          evaluating the District Court’s decision
final judgment of conviction and                 to admit the government’s expert
sentence, and we have jurisdiction under         testimony. It is well-settled that, as a
28 U.S.C. § 1291.                                general matter, we review a district
                                                 court’s decision to admit expert
    On appeal, Mitchell asserts that the
                                                 testimony for abuse of discretion. See In
District Court committed five errors.
                                                 re TMI Litig., 193 F.3d 613, 666 (3d Cir.
First, he challenges the District Court’s
                                                 1999). We exercise plenary review,
ruling following the Daubert hearing that
                                                 however, over a district court’s legal
admitted the prosecution’s expert
                                                 interpretation of Fed. R. Evid. 702, under
testimony on fingerprint identification.
                                                 which the evidence in question was
Second, Mitchell claims that the District
                                                 admitted. See id. On this much the
Court erred in precluding his experts
                                                 parties agree.
from testifying at trial that fingerprint
identification is not a science, and is             Disagreement arises about the
otherwise unreliable. Third, Mitchell            standard of review where, as here, the
finds error in the District Court’s              District Court made no findings of fact to
decision to take judicial notice of the          support its admission of the testimony;
uniqueness of small areas of friction            indeed, after the lengthy Daubert
ridge skin. Fourth, Mitchell contends            hearing, the District Court elected not to
that the government’s withholding of the         make findings of fact or conclusions of
NIJ solicitation, which could have been          law (written or oral), and simply ruled
used as impeachment evidence, merited a          from the bench. This absence of factual
new trial under Fed. R. Crim. P. 33, or          findings, Mitchell contends, requires
that this nondisclosure violated the             plenary review. We reject the rule that
government’s obligation under Brady v.           Mitchell urges for four reasons. First,
Maryland, 373 U.S. 83 (1963). Fifth,             Mitchell has provided no precedent for
Mitchell asserts that the District Court         such a heightened standard of review
improperly admitted hearsay in the               over a field historically committed to the
testimony of the government’s principal


                                            21
sound discretion of district courts.13             Appeals to assess the matter. See
Second, the exception that Mitchell                Ruggero J. Aldisert, The Judicial
proposes would swallow the rule that               Process 728-29 (2d ed. 1996) (quoting
district courts’ evidentiary rulings are           Maurice Rosenberg, Judicial Discretion
generally reviewed only for abuse of               of the Trial Court, Viewed from Above,
discretion. The vast majority of                   22 Syracuse L. Rev. 635, 663 (1971)
evidentiary rulings are made on-the-fly            (“[P]robably the most pointed and
and without written findings of fact, yet          helpful [reason] for bestowing discretion
this Court routinely affords deference to          on the trial judge is [that] . . . . he sees
such judgments. Third, Mitchell’s                  more and senses more [than the Court of
argument misconceives the rationale for            Appeals].”)). This case is a good
using a deferential standard of review.            example: The District Court assessed
Deferential review is employed not                 extensive live testimony, while we work
because the court being reviewed labored           from a cold record. Fourth, the Supreme
to produce a long opinion— there are               Court has in other contexts rejected
lengthy but incorrect opinions just as             heightened appellate review of district
there are brief but sagacious ones.                court rulings on expert testimony. See
Rather, deferential review is used when            Gen. Elec. Co. v. Joiner, 522 U.S. 136
the matter under review was decided by             (1997).
someone who is thought to have a better
                                                       Thus we reject Mitchell’s proposed
vantage point than we on the Court of
                                                   standard of review, and adhere to the
                                                   usual precepts of abuse-of-discretion
                                                   review over the District Court’s decision
  13
     The case Mitchell cites in his brief          to admit the government’s expert
and relied on at oral argument, United             testimony.
States v. Ellis, 121 F.3d 908, 927 (4th
                                                        B. Standard for Admissibility
Cir. 1997), is inapposite. Ellis applied
                                                               under Rule 702
plenary review not to the admission of
expert testimony, but rather to a claim of             The pathmarking Supreme Court
prosecutorial misconduct where the                 cases interpreting Fed. R. Evid. 702 are
district court had made no findings of             Daubert v. Merrell Dow
fact. Apart from the fact that the issue in        Pharmaceuticals, Inc., 509 U.S. 579
Ellis has strong Constitutional overtones          (1993), and Kumho Tire Co. v.
that the Rule 702 issue in this case lacks,        Carmichael, 526 U.S. 137 (1999). The
this Court does not agree with the Fourth          version of Rule 702 in effect at the time
Circuit on this point. See United States           of the Daubert hearing and the trial
v. Ismaili, 828 F.2d 153, 163 (3d Cir.
1987) (reviewing District Court’s
rejection of a prosecutorial misconduct
claim for abuse of discretion).

                                              22
provided:14                                        Daubert, 509 U.S. at 589-92. Daubert
                                                   was “limited to the scientific context
   If scientific, technical, or other
                                                   because that [wa]s the nature of the
   specialized knowledge will assist
                                                   expertise offered [t]here,” id. at 590 n.8,
   the trier of fact to understand the
                                                   but Kumho Tire extended Daubert’s
   evidence or to determine a fact in
                                                   “general principles” to all of “the expert
   issue, a witness qualified as an
                                                   matters described in Rule 702.” Kumho
   expert by knowledge, skill,
                                                   Tire, 526 U.S. at 149. Thus “technical
   experience, training, or education,
                                                   knowledge,” under which heading the
   may testify thereto in the form of
                                                   discipline of latent fingerprint
   an opinion or otherwise.
                                                   examination and identification seems to
    Daubert identified the twin concerns           fall, is generally subject to the same
of “reliability” (also described as “good          considerations as “scientific” expertise.
grounds”) and “helpfulness” (also
                                                       The “general principles” adverted to
described as “fit” or “relevance”) as the
                                                   in Kumho Tire comprised not only the
“requirements embodied in Rule 702.” 15
                                                   fundamental concerns of reliability and
                                                   helpfulness, but also a method for
  14
    The rule was subsequently amended,             assessing reliability. The Daubert Court
effective December 1, 2000, to codify              articulated “general observations” to this
aspects of Daubert and its progeny. The            end by offering a nonexclusive list of
Advisory Committee’s note                          five factors that a district court might
accompanying that amendment is a                   consider in deciding whether to admit
useful consolidation of commentary and             evidence under Rule 702. The Advisory
precedent on the version of Rule 702 that          Committee summarized these factors:
applies in Mitchell’s case, and so we will            The specific factors explicated by
refer to it at points in our opinion.                 the Daubert Court are (1) whether
  15                                                  the expert’s technique or theory
     In applying the teachings of Daubert
                                                      can be or has been tested—that is,
in In re TMI Litigation, we explained that
                                                      whether the expert’s theory can be
Rule 702 was addressed to two issues:
                                                      challenged in some objective
first, the qualification of the experts
                                                      sense, or whether it is instead
themselves, and second, the reliability
                                                      simply a subjective, conclusory
and helpfulness of their testimony. See
                                                      approach that cannot reasonably
In re TMI Litig., 193 F.3d at 664 (citing
                                                      be assessed for reliability; (2)
In re Paoli R.R. Yard PCB Litig., 35 F.3d
                                                      whether the technique or theory
717, 749-50 (3d Cir. 1994) (Paoli II)).
Daubert addresses the latter. As noted
above, the former is not at issue in this
appeal, as the District Court qualified all        areas of expertise, and neither party
experts on both sides in their proffered           challenges any of these rulings.

                                              23
      has been subject to peer                   Paoli II, 35 F.3d at 742 n.8.
      review and publication; (3) the
                                                    These factors address only reliability,
      known or potential rate of
                                                 and not “helpfulness” or “fit.” But the fit
      error of the technique or
                                                 inquiry in the case of fingerprint
      theory when applied; (4) the
                                                 identification is not a significant factor,
      existence and maintenance of
                                                 because identity evidence is the
      standards and controls; and (5)
                                                 archetypal relevant evidence in criminal
      whether the technique or
                                                 cases. Thus, the analysis that follows
      theory has been generally
                                                 only addresses the reliability prong of
      accepted in the scientific
                                                 Daubert.
      community.
                                                    C. Application of Daubert Factors
Fed. R. Evid. 702 advisory committee’s
                                                    to Government’s Expert Testimony
note.
                                                               1. Testability
    Citing Kumho Tire, the Advisory
Committee noted that “[o]ther factors                 We first consider whether the
may also be relevant,” id., and indeed,          premises on which fingerprint
courts have augmented this list. In Paoli        identification relies are testable— or,
II we drew on Daubert and our earlier            better yet, actually tested. “Testability”
decision in United States v. Downing,            has also been described as
753 F.2d 1224 (3d Cir. 1985), to lay out         “falsifiability.” See, e.g., Daubert, 509
an expanded list of factors:                     U.S. at 593 (citing Karl R. Popper,
                                                 Conjectures and Refutations: The
   (1) whether a method consists of a
                                                 Growth of Scientific Knowledge 37 (5th
   testable hypothesis; (2) whether
                                                 ed. 1989)). A proposition is “falsifiable”
   the method has been subject to
                                                 if it is “capable of being proved false;
   peer review; (3) the known or
                                                 defeasible.” Webster’s Third New
   potential rate of error; (4) the
                                                 International Dictionary 820
   existence and maintenance of
                                                 (unabridged ed. 1966). Proving a
   standards controlling the
                                                 statement false typically requires
   technique’s operation; (5) whether
                                                 demonstrating a counterexample
   the method is generally accepted;
                                                 empirically—for instance, the hypothesis
   (6) the relationship of the
                                                 “all crows are black” is falsifiable
   technique to methods which have
                                                 (because an albino crow could be found
   been established to be reliable; (7)
                                                 tomorrow), but a clairvoyant’s statement
   the qualifications of the expert
                                                 that he receives messages from dead
   witness testifying based on the
                                                 relatives is not (because there is no way
   methodology; and (8) the
                                                 for the departed to deny this).
   non-judicial uses to which the
   method has been put.                             In this case, the relevant premises


                                            24
were posed as explicit questions to many          on identical twins (testified about by
of the government experts: (1) Are                Agent German) showed unique
human friction ridge arrangements                 fingerprints. While this is a small
unique and permanent? and (2) Can a               sample, there are independent and solid
positive identification be made from              genetic grounds for believing that if
fingerprints containing sufficient                identical friction ridge arrangements are
quantity and quality of detail? The               to be found, they are most likely to be
government’s experts responded in the             found in identical twins. Third, in the
affirmative. We must consider not                 course of routine fingerprint
whether we agree as a factual matter with         examination, there are certainly
their responses, see Paoli II, 35 F.3d at         opportunities to encounter identical
744, but rather whether these hypotheses          fingerprints; as several witnesses
are testable (or tested). We conclude that        testified, such a discovery would be very
they are.                                         notable and word would spread quickly
                                                  throughout the fingerprint examiner
    Consider the first premise (which is
                                                  community. Yet no reports of non-
really two hypotheses in one)—that
                                                  unique friction ridge arrangements were
human friction ridge arrangements are
                                                  introduced, and, indeed, the FBI survey
unique and permanent. The uniqueness
                                                  sent to state agencies revealed that none
proposition is testable because it would
                                                  had ever encountered two different
immediately be shown false upon the
                                                  persons with the same fingerprint. Joint
production of identical friction ridge
                                                  Supp. App. at 55.
arrangements taken from different
fingers (either from different fingers on             The permanence component of the
the same person, or from two different            first hypothesis is also easily
people). The uniqueness proposition has           testable—simply take fingerprints from
also been tested in several ways: First,          an individual at one time and compare
the full-print matching portion of the            them to the prints taken at another time.
FBI’s 50/50 experiment tested it and              The Daubert hearing did not provide
found no true matches. 16 Second, studies         much evidence of actual testing of this


  16
    The experiment had its limitations,           circumstances, we are unsure if it is
though. First, the test sought to match           adequate here. There is limited evidence
fingerprints, not friction skin                   on the record of why the government’s
arrangements on actual fingers. Second,           experts chose a 50 thousand fingerprint
it was only a sample—50 thousand                  set, and why they could confidently
fingers tested, out of about 60 billion in        extrapolate from it. Indeed, there is
the world. While this sample size seems           some suggestion that purely practical
quite large, and doubtless would be               technical concerns may have dominated
adequate in many if not most                      this choice. See infra note 18.

                                             25
hypothesis, however.                                   Just how much testing has been done
                                                   to this end is unclear from the testimony
    We turn next to the testability of the
                                                   at the Daubert hearing. On the one hand,
second hypothesis—that positive
                                                   it might be that examiners compare a
identification can be made from
                                                   latent print to a series of full-rolled prints
fingerprints containing sufficient
                                                   until a match is found, and then terminate
quantity and quality of detail. Much of
                                                   the process. If this protocol is used for
the debate in this case is masked by the
                                                   routine examinations, those examinations
word “sufficient.” For example, a
                                                   will not tend to turn up multiple matches,
sufficiency standard of “100 points of
                                                   because the examiner stops work after
matching Level 2 detail in an undistorted
                                                   finding one match. In essence, the
fingerprint lifted from a clean, smooth
surface” would surely attract less
objection than a sufficiency standard of
“four points of matching Level 2 detail            Meagher identified fourteen points of
and passable quality.” The actual                  Level 2 detail (and unspecified
standard employed by any given FBI                 supporting Level 3 detail, which we
examiner falls somewhere between these             leave aside for simplicity) that matched
extremes, yet the FBI’s reliance on an             Mitchell’s right thumbprint to the latent
unspecified, subjective, sliding-scale mix         print taken from the gearshift knob.
of “quantity and quality of detail” makes          Thus, for purposes of this particular
meaningful testing elusive, for it is              identification, “sufficient quantity and
difficult to design an experiment to test a        quality of detail” really means “fourteen
hypothesis with unspecified parameters.            points of Level 2 detail.” The hypothesis
Two things rescue fingerprint                      that “fourteen points of Level 2 detail is
identification from this apparent failure          enough to make an identification” is
of testability: First, the examiner can            falsifiable because one might be able to
testify to how much detail (quantitative           show that some latent print matches more
and qualitative) was necessary for the             than one full-rolled print under the
particular identification at issue; and            “fourteen points of Level 2 detail”
second, any testing directed toward                standard.
falsifying the premise that a greater or                   Actual testing (as opposed to mere
equal amount of detail is sufficient to            testability) is harder to come by, probably
make an identification will serve as an            because someone seeking to falsify this
attempt (albeit an imperfect one) to               hypothesis has no a priori reason to
falsify the adequacy of the identification         choose 14 points instead of 13 or 15 as
standard actually used.17                          the standard. Nonetheless, any showing
                                                   that a more stringent standard (e.g., a 20-
                                                   point standard) is fallible necessarily
  17
   A concrete example may provide                  implies that the 14-point standard is also
some clarity. In this case, Agent                  fallible.

                                              26
examiner has assumed the                            computations extrapolating this to a
conclusion—that no other prints will                much larger population of prints
match the latent, and therefore no further          suggested that such duplicate matches
search is required. On the other hand,              would still be highly improbable.
testimony at the Daubert hearing about
                                                        Mitchell’s experts, however, attacked
the AFIS computer system suggests that
                                                    the design of the 50/50 experiment, most
the system tests a given latent print
                                                    effectively on the ground that
against its entire database (or a selected
                                                    pseudolatents are poor approximations of
subset) of full-rolled prints, and returns a
                                                    real latent prints.18 This lack of
set of the best candidate matches. This
                                                    correspondence undermines the utility of
protocol would tend to expose multiple
                                                    the experiment because the issue for
full-rolled prints that match a given
                                                    Daubert purposes is the testing of the
latent. Consequently, a lack of multiple
                                                    hypothesis that positive identification be
matches from AFIS searches can
                                                    made from actual latent fingerprints
constitute testing of the hypothesis that
                                                    containing sufficient detail. As we
single positive identifications can be
                                                    recount above, see supra page 13,
made from latent fingerprints. Whatever
                                                    Mitchell’s experts (particularly Dr.
the case, no state agency claimed in
                                                    Stoney) convincingly explained why the
response to the FBI survey that it had
found a latent fingerprint that was
“identified with two different fingers of             18
                                                         They also contended that actual tests
the same person or even different
                                                    on a larger data set (i.e., more
persons.” Joint Supp. App. at 55. This is
                                                    fingerprints) would have been preferable
perhaps the strongest support for the
                                                    to statistical extrapolations. However,
government on this point.
                                                    significantly larger data sets may be
    Modest support also comes from the              computationally intractable: The
second part of the government’s 50/50               experiments conducted for this case took
experiment, which matched simulated                 on the order of a day to run on the
latent prints (pseudolatents) against the           computer. But for larger sets of
50,000 full-rolled prints in the sample             fingerprints, the number of comparisons
under examination. Setting aside                    goes up as the second power (i.e., the
spurious results due to mistakes in the             square) of the number of prints in the
FBI’s database, the experiment found                sample. Thus, a 1 million / 1 million
that each pseudolatent strongly matched             experiment would take 20 x 20 = 400
one and only one full-rolled print. In              times longer than a 50 thousand / 50
other words, the experiment did not                 thousand experiment—or on the order of
reveal any counterexample to the                    a year to complete, given the same
hypothesis that identifications can be              computing power. An experiment with
made. Moreover, statistical                         the FBI’s full AFIS database would take
                                                    millennia.

                                               27
process used by the government experts             reliability. In sum, the hypotheses that
to generate the pseudolatents for the              undergird the discipline of fingerprint
50/50 experiment renders them poor                 identification are testable, if only to a
substitutes for actual latent prints. In           lesser extent actually tested by
brief, the failing flagged by Dr. Stoney is        experience, and so we find this factor to
that actual prints are subject to                  weigh in favor of admitting the evidence.
distortions and artifacts that were not
                                                                2. Peer Review
simulated by the pseudolatent generator.
Arguably, the pseudolatents resembled                  The evidence at the Daubert hearing
actual latents only in that the former were        on peer review was not particularly
similar in areal size to the latter. Dr.           extensive. Much of the testimony
Stoney’s contention rings true: Distorted,         centered around the question whether the
real-world latent prints should tend to be         “verification” step in the ACE-V
harder to match to full-rolled prints than         protocol—where a second examiner
should computer-generated simulated                confirms the identification made by the
latents. Since the 50/50 experiment did            first examiner—constitutes effective peer
not adequately model real-world                    review. On the one hand, this could be
conditions, we cannot say that it                  viewed as stringent peer review,
significantly supports the government’s            equivalent to the best sort used in, for
position.                                          example, the physical sciences, where
                                                   peer review most often consists of
    In sum, if directed, specific actual
                                                   anonymously reviewing a given
testing were the requirement of Daubert,
                                                   experimenter’s methods, data, and
we might be hesitant to find this factor
                                                   conclusions on paper. Sometimes the
weighing in favor of the government.
                                                   review takes the form of reproducing in
There is some force to Budowle’s point
                                                   full the results under review—that is, a
that “[n]o one would say any one test or
                                                   second investigator repeats the entire
any kind of thing [that] has been done in
                                                   course of experiments. Thus the
one hundred years proves uniqueness.”
                                                   verification step of ACE-V seems
App. 1013a. But his further point about
                                                   usually to be akin to this heightened form
a long history of implicit testing is
                                                   of peer review: The government’s
equally forceful: “It’s the culmination of
                                                   experts testified that verification often
all of the experiences that [demonstrate
                                                   amounts to repeating the whole
uniqueness].” App. 1013a. Moreover,
                                                   identification process de novo, though
testability—which assures the opponent
                                                   sometimes the verifying examiner will
of proffered evidence the possibility of
                                                   merely confirm the match found by the
meaningful cross-examination (should he
                                                   initial examiner. See App. 161a.
or someone else undertake the
                                                   Moreover, in this particular case, the
testing)—is one of the factors announced
                                                   survey of state law enforcement agencies
by the Daubert Court as an indicium of
                                                   constitutes verification many times over

                                              28
of the match of Mitchell’s fingerprints.           by the government and by Mitchell—that
                                                   address more theoretical/foundational
    Mitchell’s experts, however, (Dr.
                                                   questions, such as an appropriate
Cole in particular) cast some doubt on
                                                   minimum point standard, the likelihood
the purity of the verification step.
                                                   of two persons having identical friction
Backed by his research, Dr. Cole
                                                   ridge arrangements, and so on. Thus the
suggested that fingerprint examiners
                                                   publication facet of peer review is not a
have developed an “occupational norm
                                                   strong factor, and neither reinforces nor
of unanimity” that strongly discourages
                                                   detracts from our conclusion that the peer
the verifying examiner from challenging
                                                   review factor favors admission.
the identification made by the initial
examiner. Moreover, Dr. Cole criticized                          3. Error Rate
peer review of latent fingerprint
                                                       The parties have waged a
identification conclusions for not being
                                                   considerable battle of experts over
anonymous. We also acknowledge that
                                                   whether a known error rate exists for
the cultural mystique attached to
                                                   latent fingerprint identification.
fingerprint identification may infect the
                                                   Assuming that such a rate has been
peer review process. But the
                                                   soundly established, it is surely a low rate
government’s experts countered that they
                                                   of error. But the existence of any error
were aware of cases where the results of
                                                   rate at all seems strongly disputed by
the verification step caused the initial
                                                   some latent fingerprint examiners.
examiner to withdraw his initial
identification. Looking at the entire                  The question whether an error rate
picture, the ACE-V verification step may           can be established on the existing data is
not be peer review in its best form, but,          subtler than the parties seem to
on balance, the peer review factor does            acknowledge. Preliminarily, we must
favor admission.                                   distinguish between two error rates: false
                                                   positives and false negatives. In this
     The peer review factor also
                                                   context, false positives are incorrect
encompasses publication, as the
                                                   affirmative identifications, and false
dissemination of a work tends to subject
                                                   negatives are incorrect findings of
it to scrutiny in the same way that
                                                   dissimilarity. A fair amount of the
prepublication peer review does. See
                                                   government’s evidence—and also much
Daubert, 509 U.S. at 593-94. On the one
                                                   of Mitchell’s response—centers on the
hand, a significant fraction of the
                                                   existence vel non of failed
publications in the field concern articles
                                                   identifications. For example, the
on technique—for example, the best
                                                   government stresses the large number of
practices for preserving latent
                                                   state agencies that confirmed its
prints— and such materials say little
                                                   identifications, and Mitchell counters by
about the field’s reliability. On the other
                                                   pointing to the agencies that failed to
hand, there are articles—introduced both

                                              29
identify the prints. But these                         Thus we must focus on evidence that
observations go to the rate of false               is probative of the rate of false positives.
negatives: While a system of                       Perhaps the government’s most powerful
identification with a high false negative          evidence is the fact that, in the course of
rate may be unsatisfactory as a matter of          the FBI survey of state agencies, no
law enforcement policy, in the courtroom           jurisdiction ever matched the latent prints
the rate of false negatives is immaterial          from the gearshift knob and door handle
to the Daubert admissibility of latent             to anyone other than M itchell
fingerprint identification offered to prove        himself—despite searches run against (in
positive identification because it is not          the aggregate) nearly 70 million ten-print
probative of the reliability of the                records. Assuming that every record had
testimony for the purpose for which it is          10 fingerprints, and that the latents
offered (i.e., for its ability to effect a         actually were left by Mitchell, the test of
positive identification). 19                       the two latent prints against these records
                                                   implies something on the order of 1.4
                                                   billion comparisons resulting in no false
  19                                               positives. The government can also draw
    Moreover, evidence of the false
                                                   support from the very limited number of
negative rate is often equivocal. While it
                                                   reports of false positive identifications
might suggest a generally error-prone
                                                   throughout the many decades that the
method, it is equally consistent with a
                                                   technique has been in use. Furthermore,
very conservative method with a low
                                                   the government’s 50/50 experiment using
false positive error rate. That is, a
                                                   pseudolatents, representing 2.5 billion
method may be designed to lower its
                                                   comparisons, also did not register any
false positive error rate by accepting a
                                                   false positives, though as we have noted,
large number of false negatives out of an
                                                   see supra page 27, it had flaws.
abundance of caution. One very familiar
example of such a system is the criminal               Mitchell counters this evidence in
jury using the “beyond a reasonable                two different ways, but neither of them
doubt” standard: As the adage (attributed          fully refutes the government’s evidence.
to Blackstone) says, “It is better that ten        First, he raises a legal challenge,
guilty escape [false negatives] than one           claiming that the burden of proof under
innocent suffer [a false positive].” The           Fed. R. Evid. 104(a) is up-ended by
same may be true for latent fingerprint            effectively requiring him to come
identification—the examiners who                   forward with examples of false positives.
declared they could not match the latent           While Mitchell is correct that Rule
prints in the FBI’s survey (the examiners          104(a) places the burden of proof on the
responsible for the putative false                 proponent of the evidence (here, the
negatives) may have done so because
they would rather commit a likely false
negative error rather than risk a small            chance of a false positive identification.

                                              30
government), see Bourjaily v. United                    We therefore accept that the error rate
States, 483 U.S. 171, 175 (1987), this              has been sufficiently identified to count
does not mean that the burden is static, at         this factor as strongly favoring admission
least in terms of a burden of going                 of the evidence. The error rate has not
forward. Particularly in a case like this,          been precisely quantified, but the various
where what is sought to be proved is                methods of estimating the error rate all
essentially a negative (i.e., the absence of        suggest that it is very low. This follows
false positives), it seems quite                    from three pieces of evidence we identify
appropriate to us to use a burden-shifting          above as favoring the government: (1)
framework. Such a framework was
applied here: The government’s
experts—qualified as knowledgeable in
                                                    makes clear that error rates and the
matters pertaining to fingerprint
                                                    qualification of the expert are distinct
identification—testified to their being
                                                    inquiries. 35 F.3d at 742. The corollary
unaware of significant false positive
                                                    to this, however, raises an issue for any
identifications. At that point, it becomes
                                                    given fingerprint expert: His testimony
quite reasonable to shift the burden to the
                                                    would be more likely to be admitted
opponent of the evidence (here, Mitchell)
                                                    (because he would be more qualified) if
to counter this claim with affirmative
                                                    he himself demonstrated a low rate of
examples.
                                                    false positives in his own work and/or on
     Mitchell’s second attack on the                his own proficiency tests. Cf. Calhoun v.
government’s evidence of error rates is             Yamaha Motor Corp., 350 F.3d 316, 322
factual. He presented evidence that                 (3d Cir. 2003) (holding that the scope of
fingerprint examiners sometimes make                an expert’s testimony was properly
false positive identifications on                   circumscribed by the scope of his
proficiency examinations. This evidence             expertise).
is troubling, but we view it as evidence                As suggested above, known false
relating only to the competency of those            positives have been attributed to malice
practitioners, leaving undisturbed the              or incompetence on the part of the
government’s evidence about the near-               examiner, and not to a deeper flaw in the
absence of false positive identifications.20        method itself. Dr. Cole testified that this
                                                    “circling the wagons” behavior is yet
                                                    another occupational norm of a
  20
     Mitchell’s experts respond by                  fingerprint identification community bent
denying the existence of a dichotomy                on preserving the unimpeachability of its
between method error rate and                       methods. But even if every false positive
practitioner error rate, asserting that both        identification signified a problem with
are part of a unitary inquiry. We reject            the identification method itself (i.e.,
this view as a legal conclusion                     independent of the examiner), the overall
inconsistent with Paoli II. Paoli II                error rate still appears to be microscopic.

                                               31
the absence of significant numbers of             Rules of Evidence, admission of expert
false positives in practice (despite the          testimony was governed by the Frye test,
enormous incentive to discover them),             which required that the evidence must
(2) the absence of false positives in the         have gained “general acceptance in the
FBI’s state agency survey, and (3) the            particular field in which it belongs.”
statistical computations based on the             Frye v. United States, 293 F. 1013, 1014
50/50 experiment.                                 (D.C. Cir. 1923). Daubert held that
                                                  Congress’s adoption of Rule 702
      4. Maintenance of Standards
                                                  legislatively overruled Frye, see 509 U.S.
    Closely related to the question of            at 588-89, but at the same time
error rate is the maintenance of standards        acknowledged that “‘general acceptance’
to guide the application of the method.           can yet have a bearing on the inquiry,”
This is lacking here in some measure.             id. at 594. Thus we consider as one
The FBI maintains that its flexibility to         factor in the Daubert analysis whether
consider a mixture of Level 2 and Level           fingerprint identification is generally
3 detail in making identifications renders        accepted within the forensic
its method superior to and more flexible          identification community. The answer is
than the minimum-points standards used            yes, as demonstrated by the results of the
in some states and various foreign                FBI’s survey of state agencies. See App.
jurisdictions. The tradeoff, though, is           383a. Mitchell’s only argument with
that the FBI’s method lacks a significant         respect to this factor is that there is no
yardstick of standard-based objectivity.          scientific community that generally
In contrast, with a minimum-point                 accepts fingerprint identification. But
standard there is at least some agreement         the scientific/nonscientific distinction is
about what constitutes a Galton point and         irrelevant after Kumho Tire, and
what does not.                                    accordingly we reject the argument. We
                                                  also note that the Court of Appeals for
    Some standards do remain: There are
                                                  the Fourth Circuit, in addressing the
procedural standards (such as ACE-V)
                                                  same question that we are considering
and terminological standards (such as the
                                                  here, relied heavily on general
naming conventions for Galton points).
                                                  acceptance to support the admission of
But these are insubstantial in comparison
                                                  fingerprint identification evidence. See
to the elaborate and exhaustively refined
                                                  United States v. Crisp, 324 F.3d 261 (4th
standards found in many scientific and
                                                  Cir. 2003). We likewise conclude that
technical disciplines. As such, we find
                                                  this factor weighs in favor of admitting
that this factor does not favor admitting
                                                  the evidence.
the evidence.
                                                       6. Relationship to Established
         5. General Acceptance
                                                           Reliable Techniques
   Prior to the adoption of the Federal
                                                     Although the parties have not

                                             32
provided us with extensive analysis of               Schneider ex rel. Estate of Schneider v.
the relationship of the principles and               Fried, 320 F.3d 396, 407 (3d Cir. 2003)
practice of latent fingerprint                       (“[The defendant’s] argument appears to
identification to “‘more established                 challenge the qualification of [the
modes of . . . analysis,’” Paoli II, 35 F.3d         plaintiff’s expert]; although we note that
at 742 (quoting Downing, 753 F.2d at                 ‘the degree to which the expert testifying
1238-39), it seems to us that this is the            is qualified’ also implicates the reliability
best heading under which to consider the             of the testimony.” (quoting Paoli II, 35
government’s evidence from the fields of             F.3d at 742)).
developmental embryology and anatomy.
                                                         The qualifications of Agents Meagher
The testimony and documentary
                                                     and Johnson matter the most, because
materials introduced on these topics
                                                     they were the government’s experts at
during the Daubert hearing—especially
                                                     trial. Both had estimable qualifications.
through Dr. Babler—tended to establish
                                                     The putative blemish on their
biological bases for the uniqueness and
                                                     qualifications, which we hint at above,
permanence of areas of friction ridge
                                                     see supra note 20, is that neither testified
skin. Since no question was raised about
                                                     extensively about his own known error
the soundness and reliability of the work
                                                     rate as a practitioner (as might be
in these specialties, we are comfortable
                                                     revealed, for example, by proficiency
that the reliability of these fields is well-
                                                     tests they had taken). While this is by no
established. Independent work in these
                                                     means fatal to the admissibility of the
fields bolsters the underlying premises of
                                                     testimony, prosecutors would be well-
fingerprint identification, and so we find
                                                     advised to elicit testimony about their
that this factor lends additional support
                                                     experts’ personal proficiency, rather than
to admitting the latent fingerprint
                                                     relying on the discipline’s good general
identification evidence.
                                                     reputation among lay jurors. Failing that,
     7. Degree to Which the Expert                   we are confident that defense counsel
         Testifying Is Qualified                     will use cross-examination to expose
                                                     incompetent fingerprint examiners. In
    As we have noted before, there were
                                                     this case, Agent Meagher’s uniquely
essentially no challenges to the
                                                     strong qualifications and the
qualifications of the government’s
                                                     confirmatory identifications from state
experts (or of Mitchell’s experts, for that
                                                     agencies are a surrogate for testimony
matter), but the binary question whether
                                                     about Agent Meagher’s and Agent
an expert is or is not qualified to testify
                                                     Johnson’s personal proficiency as
to a particular subject is analytically
                                                     examiners.21 Thus this factor supports
distinct, under Rule 702, from the more
finely textured question whether a given
expert’s qualifications enhance the                    21
                                                         Mitchell’s counsel came close to
reliability of his testimony. See
                                                     inquiring on voir dire about Agent

                                                33
admitting the government’s evidence.              government offered some evidence of the
                                                  non-judicial uses of fingerprint
          8. Non-Judicial Uses
                                                  identification, particularly through Dr.
    We have recognized that evidence of           Budowle. App. 639a-641a. In analyzing
the non-judicial uses of the technique in         this factor, the government relies on
question is relevant to the Daubert               three categories of non-judicial uses of
reliability inquiry. See Paoli II, 35 F.3d        fingerprints: (1) the identification of
at 742. This is because non-judicial use          arrested persons (e.g., checking an
of a technique can imply that third               arrestee’s record at the time of booking);
parties—i.e., persons other than the              (2) biometric identification as a security
proponent of the expert testimony, for            measure (e.g., authenticated access to a
whom the testimony is typically self-             computer system) or for regulatory
serving—would vouch for the reliability           purposes (e.g., fingerprinting for driver
of the expert’s methods.22 The                    licensing as an anticounterfeiting
                                                  measure); and (3) identification of partial
                                                  remains following disasters. While at
Meagher’s results on proficiency                  first blush this seems like a factor
examinations administered internally by           strongly supporting admissibility, the
the FBI, but did not actually ask a               bloom recedes upon close analysis.
specific question. App. 1456a-1457a.
The government did ask Agent Johnson                 Latent fingerprint identification
about his results on FBI proficiency              works from fingerprints that are partial
examinations, but defense counsel                 and subject to distortions. All the non-
objected and the Court sustained the              judicial uses listed above either use full-
objection on the ground that Johnson had
already been qualified as an expert. App.
1652a-1653a. As our discussion in the             introduced evidence of the widespread
text suggests, this question was                  commercial use of biometric
proper—even desirable—and the District            identification technology based on
Court was wrong to sustain the objection.         fingerprints. It is possible that
                                                  commercial adoption of the method
  22
    Keeping this rationale in mind is             signals acceptance of its reliability. But,
helpful, because some non-judicial uses           as Mitchell’s uncontradicted survey
will support the required inference of            evidence showed, fingerprint
third-party confidence better than others.        identification enjoys a near-mythical
For example, no one would argue that the          reputation for reliability, and so the
commercial popularity of astrology for            evidence of commercial adoption is
non-judicial use makes it fit for                 equally consistent with uncritical
admission under Rule 702. This case               acceptance of a method that consumers
may provide another example: As we                merely believe—but do not know—to be
discuss below, the government                     reliable.

                                             34
rolled prints, or avoid the difficulties             identification, the government’s experts
introduced by distortion— or both. Both              did testify that fragments of friction ridge
differences are critical, as Mitchell’s              skin have been used to make
experts testified and as the government’s            identifications, but even those
experts acknowledged: It is significantly            identifications still differ from latent
easier to match one clean full-rolled print          fingerprint identification because
to another than it is to match a somewhat            identification using actual skin eliminates
distorted latent fragment to a full-rolled           the challenges introduced by
print. 23 Thus, in the case of identification        distortions.25 Thus there is less here than
of arrestees, the booking officer will take          meets the eye, and while this factor
a ten-print card with a full set of full-            supports admitting the government’s
rolled prints, and if the prints do not              evidence, it does so only weakly.
come out cleanly, the officer has the
                                                            D. Application to the Record of
opportunity to take a second set of
                                                               Core Daubert Principles
impressions. Likewise, the security and
regulatory uses of fingerprinting                       Although it is clear from the
generally rely on clean, full-rolled                 foregoing analysis of the Daubert factors
prints.24 As for disaster-victim

                                                     App. 639a. This makes such a technique
  23
     The government’s experts implicitly             more akin to latent fingerprint
acknowledged this—even before the                    identification, but it still differs in
Daubert hearing—in the very design of                significant ways. First, the fraction of
the 50/50 experiment: The first stage of             the print will be distortion-free, unlike
that experiment was the matching of full-            actual latent prints. Second, the 6%
rolled prints to full-rolled prints, but the         portion is likely to be taken from a
ultimate aim of the experiment was to                portion of the finger with a high areal
test pseudolatent prints against full-rolled         density of Level 2 detail, a luxury that
prints to better simulate the more                   latent fingerprint examiners do not have.
demanding exercise of latent fingerprint
                                                       25
identification. Of course, as we have                    We also understand the task in
noted above, see supra page 14, even this            disaster-victim identification as being
refined experiment used pseudolatents,               (merely) to individualize one victim out
and thus failed to capture the                       of at most a few thousand victims, while
complexities of matching latent prints               forensic criminal identification seeks to
marred by distortions and artifacts.                 individualize the defendant out of a pool
                                                     of millions of potential perpetrators.
  24
    Dr. Budowle testified that current               Accordingly, there seems to be less of a
commercial research and development                  threat of a false positive in the context of
seeks to use as little as 6% of the area of          disaster-victim identification than in
the full print to make an identification.            forensic criminal identification.

                                                35
that the government’s fingerprint                    scientifically sound and
evidence passes muster, Mitchell                     methodologically reliable fashion.
contends that the government’s inability
                                                  Ruiz-Troche v. Pepsi Cola Bottling Co.,
to establish that its evidence is correct,
                                                  161 F.3d 77, 85 (1st Cir. 1998) (citations
and its failure to show that its evidence
                                                  omitted) (quoting Daubert, 509 U.S. at
meets the standards required of
                                                  590) (citing Kannankeril v. Terminix
“science,” mean that the government’s
                                                  Int’l, Inc., 128 F.3d 802, 806 (3d Cir.
evidence must be excluded. M itchell is
                                                  1997); Paoli II, 35 F.3d at 744), quoted
wrong. This is established by Daubert
                                                  in part in In re TMI Litigation, 193 F.3d
itself, which requires no more than that
                                                  at 692. Good grounds for admission
the Court satisfy itself that “good
                                                  plainly exist here.
grounds” exist for the expert’s opinion.
See 509 U.S. at 590.                                  To the extent that Mitchell’s attack
                                                  rests on his experts’ claim that latent
   Judge Selya has put it well:
                                                  fingerprint examiners do not engage in
   Daubert does not require that a                “science,” he does not heed the text of
   party who proffers expert                      Rule 702 or the Supreme Court’s
   testimony carry the burden of                  teachings in Kumho Tire. Rule 702
   proving to the judge that the                  “makes no relevant distinction between
   expert’s assessment of the                     ‘scientific’ knowledge and ‘technical’ or
   situation is correct. As long as an            ‘other specialized’ knowledge.” Kumho
   expert’s scientific testimony rests            Tire, 526 U.S. at 147. The very holding
   upon “good grounds, based on                   of Kumho Tire is that those categories
   what is known,” it should be                   simply address what type of testimony is
   tested by the adversary                        covered by the rule, and that, in
   process— competing expert                      addressing admissibility under Rule 702,
   testimony and active cross-                    the same factors generally apply to all
   examination—rather than                        categories of expert testimony. Kumho
   excluded from jurors’ scrutiny for             Tire explicitly rejected as unworkable
   fear that they will not grasp its              and unnecessary any “distinction
   complexities or satisfactorily                 between ‘scientific’ knowledge and
   weigh its inadequacies. In short,              ‘technical’ or ‘other specialized’
   Daubert neither requires nor                   knowledge.” Id at 148. That a particular
   empowers trial courts to                       discipline is or is not “scientific” tells a
   determine which of several                     court little about whether conclusions
   competing scientific theories has              from that discipline are admissible under
   the best provenance. It demands                Rule 702; at best, there will be some
   only that the proponent of the                 overlap between the factors that bear on
   evidence show that the expert’s                a field’s status as “science” and
   conclusion has been arrived at in a            Daubert’s factors addressed to reliability.

                                             36
Reliability remains the polestar.                 referred to as a “gatekeeper.” This
                                                  metaphor is particularly apt because it
    Mitchell seeks a significantly higher
                                                  works two ways: On the one hand, the
threshold of admissibility under Rule
                                                  court must exclude some evidence as a
702, and, consequently, a very different
                                                  gatekeeper, by “preventing opinion
allocation of responsibility between
                                                  testimony that does not meet the
judge and jury. Yet Rule 702 and
                                                  requirements of qualification, reliability
Daubert put their faith in an adversary
                                                  and fit from reaching the jury,”
system designed to expose flawed
                                                  Schneider, 320 F.3d at 404. But on the
expertise. Mitchell misconceives this
                                                  other hand, the court is only a
balance struck by the framers of Rule
                                                  gatekeeper, and a gatekeeper alone does
702 and the Daubert Court. As the
                                                  not protect the castle; as we have
Advisory Committee explained in the
                                                  explained, “[a] party confronted with an
context of the December 1, 2000
                                                  adverse expert witness who has
amendment to Rule 702, “Daubert did
                                                  sufficient, though perhaps not
not work a ‘seachange over federal
                                                  overwhelming, facts and assumptions as
evidence law,’ and ‘the trial court’s role
                                                  the basis for his opinion can highlight
as gatekeeper is not intended to serve as
                                                  those weaknesses through effective
a replacement for the adversary system.’”
                                                  cross-examination.” Stecyk v. Bell
Fed. R. Evid. 702 advisory committee’s
                                                  Helicopter Textron, Inc., 295 F.3d 408,
note (quoting United States v. 14.38
                                                  414 (3d Cir. 2002).
Acres of Land Situated in Leflore
County, Miss., 80 F.3d 1074, 1078 (5th                Indeed, as our discussion of the
Cir. 1996)). Daubert itself emphasized            various Daubert factors suggests, many
the point: “Vigorous cross-examination,           of them are guarantees that cross-
presentation of contrary evidence, and            examination and adversary testing will be
careful instruction on the burden of proof        possible: Testability ensures the basic
are the traditional and appropriate means         possibility of meaningful cross-
of attacking shaky but admissible                 examination. Peer review and
evidence.” 509 U.S. at 596. These trial           publication also provide raw material for
practices and procedural devices like the         the cross-examining attorney to confront
directed verdict, “rather than wholesale          the expert with. The existence of a
exclusion under an uncompromising . . .           known error rate may force an expert to
test, are the appropriate safeguards where        admit to the limitations of his or her
the basis of scientific testimony meets           methods. The maintenance of standards
the standards of Rule 702.” Id. We                provides an objective benchmark to
echoed this in Paoli II, where we noted           confirm that the expert did indeed follow
“Rule 702 mandates a policy of liberal            her method. And so on. Since these
admissibility.” 35 F.3d at 741.                   factors were well-satisfied in this case, it
                                                  was with confidence that the baton was
   In this context, the court is often

                                             37
passed from the Court to the adversary                  Third, this case does not announce a
system.                                             categorical rule that latent fingerprint
                                                    identification evidence is admissible in
    The principle that cross-examination
                                                    this Circuit, though we trust that the
and counter-experts play a central role in
                                                    foregoing discussion provides strong
the Rule 702 regime has three important
                                                    guidance. And as we explain in
applications to this case. First is the core
                                                    Velasquez, both Rule 702 and the Sixth
holding of United States v. Velasquez, 64
                                                    Amendment’s Confrontation Clause
F.3d 844, 848-49 (3d Cir. 1995): Experts
                                                    permit any criminal defendant to put the
with diametrically opposed opinions may
                                                    prosecution to its proof at trial. None of
nonetheless both have good grounds for
                                                    this, however, should be read to require
their views, and a district court may not
                                                    extensive Daubert hearings in every case
make winners and losers through its
                                                    involving latent fingerprint evidence.
choice of which side’s experts to admit,
                                                    The Supreme Court has emphasized that
when all experts are qualified. Rather,
                                                    district courts “have the same kind of
the same standards of reliability and
                                                    latitude in deciding how to test an
helpfulness should be applied to both
                                                    expert’s reliability” as they do in
sides, with a “‘preference for admitting
                                                    deciding “whether or not that expert’s
any evidence having some potential for
                                                    relevant testimony is reliable.” Kumho
assisting the trier of fact.’” Id. at 849
                                                    Tire, 526 U.S. at 152. Thus a district
(quoting DeLuca v. Merrell Dow Pharm.,
                                                    court would not abuse its discretion by
Inc., 911 F.2d 941, 956 (3d Cir. 1990)).
                                                    limiting, in a proper case, the scope of a
We return to this in the next section,
                                                    Daubert hearing to novel challenges to
where we discuss the District Court’s
                                                    the admissibility of latent fingerprint
handling of Mitchell’s experts.
                                                    identification evidence—or even
     Second, district courts will generally         dispensing with the hearing altogether if
act within their discretion in excluding            no novel challenge was raised.
testimony of recalcitrant expert
                                                      E. Conclusion on the Admissibility
witnesses—those who will not discuss on
                                                         of the Government’s Evidence
cross-examination things like error rates
or the relative subjectivity or objectivity             We conclude, on the record before us
of their methods. Testimony at the                  read in light of the basic Daubert
Daubert hearing indicated that some                 principles, that most factors support (or
latent fingerprint examiners insist that            at least do not disfavor) admitting the
there is no error rate associated with their        government’s latent fingerprint
activities or that the examination process          identification evidence. There are good
is irreducibly subjective. This would be            grounds for its admission. We therefore
out-of-place under Rule 702. But we do              conclude that the District Court did not
not detect this sort of stonewalling on the         abuse its discretion in holding the
record before us.                                   government’s evidence admissible.

                                               38
    IV. Admissibility of Mitchell’s               does not disclose that Mitchell’s experts
          Expert Testimony                        were excluded or the scope of their
                                                  testimony improperly limited. To the
            A. Introduction
                                                  extent that the record is even ambiguous,
    Mitchell asserts that he was not              the onus was on Mitchell’s counsel to
permitted to put on all of his experts at         make a clear record, especially given the
trial, and hence was not able to                  multiple, nuanced categories of
effectively counter or undermine the              testimony being discussed in the
government’s fingerprint identification           colloquies with the District Court on this
evidence. Specifically, Mitchell                  matter.
contends that his three principal experts
                                                      As in the previous section, we review
at the Daubert hearing— Dr. Stoney,
                                                  the District Court’s decision to admit or
Prof. Starrs, and Dr. Cole— were, as a
                                                  exclude expert testimony for abuse of
practical matter, excluded from the trial
                                                  discretion, see In re TMI Litig., 193 F.3d
by the District Court’s rulings limiting
                                                  at 666, but also note that an error of
the scope of their testimony. Mitchell
                                                  law—such as a failure to follow
argues that our holding in United States
                                                  Velasquez—is an abuse of discretion, see
v. Velasquez, 64 F.3d 844 (3d Cir. 1995),
                                                  Planned Parenthood v. Attorney Gen.,
requires that he be able to present
                                                  297 F.3d 253, 265 (3d Cir. 2002). We
qualified expert testimony before the jury
                                                  begin with a discussion of Velasquez and
to challenge the government’s expert
                                                  then turn to the District Court’s rulings.
testimony. The government does not
dispute this as a legal matter; instead it                      B. Velasquez
takes issue with Mitchell’s premise,
                                                      The defendant in Velasquez was tried
arguing that the District Court did not in
                                                  on federal drug, firearms, and conspiracy
fact exclude Mitchell’s witnesses. The
                                                  charges. A fact in issue at trial was the
foregoing discussion about the central
                                                  origin of certain packages with
role of adversary testing in expert
                                                  handwritten mailing labels, packages the
testimony has direct application.
                                                  government sought to connect to
    If Mitchell were correct that his             Velasquez’s coconspirators. The
experts—who were undoubtedly                      government proposed to make the
qualified to offer their expert                   connection by way of forensic
opinions—were precluded from                      handwriting identification, and the
testifying in opposition to the                   District Court qualified an analyst from
government’s experts, our holding in              the Postal Inspection Service to testify to
Velasquez would obligate us to vacate             the handwriting identification. In
Mitchell’s conviction and remand for a            response, Velasquez proffered his own
new trial at which their testimony would          expert—a law professor critical of
be heard. But our review of the record            handwriting analysis whose research, we


                                             39
held, qualified him as an expert in                reliability of the opinion offered by the
handwriting analysis—to testify that               proponent expert. See Velasquez, 64
handwriting analysis in general is not             F.3d at 852 (holding that Velasquez’s
reliable, and, in the alternative, that the        expert “would have assisted the jury in
particular identifications made by the             determining the proper weight to accord
government’s expert were unreliable.               [the government’s expert’s] testimony”).
The District Court declined to admit
                                                       In sum, Velasquez announces a parity
Velasquez’s expert’s testimony,
                                                   principle: If one side can offer expert
reasoning that “whether or not
                                                   testimony, the other side may offer
handwriting expertise is admissible in a
                                                   expert testimony on the same subject to
courtroom is a legal question that was
                                                   undermine it, subject, as always, to
resolved against the defense when the
                                                   offering a qualified expert with good
court permitted [the government’s
                                                   grounds to support his criticism. Having
expert] to testify as a qualified expert in
                                                   this in mind, we turn to what happened in
the field of handwriting analysis.”
                                                   Mitchell’s case.
Velasquez, 64 F.3d at 846-47 (internal
quotation marks omitted).                             C. The Parties’ Interpretations of
                                                         the District Court’s Rulings
    On appeal, we reversed. The central
error in the District Court’s reasoning                The District Court addressed the
was its failure to follow the “axiom” that         scope of Mitchell’s proposed trial
“the reliability of evidence goes ‘more to         experts’ testimony on two occasions
the weight than to the admissibility of the        before trial: first at the time it ruled on
evidence.’” Id. at 848 (quoting United             the admissibility of the government’s
States v. Jakobetz, 955 F.2d 786, 800 (2d          expert testimony (the “first colloquy”),
Cir. 1992)). Following that principle, the         and again immediately prior to jury voir
substantive reliability question is as             dire (the “second colloquy”). Because
much for the jury (in the context of               our discussion may be illuminated for
courtroom adversary testing) as it is for          some readers by a transcript of these
the court (in the context of a Daubert             colloquies, we rescribe the relevant
hearing). Consequently, we held that it            passages in the Appendix.
was an error of law to fail to admit the
                                                       In brief, the government claims that
testimony of a qualified opposing expert,
                                                   the District Court simply precluded
provided that the testimony meets the
                                                   Mitchell’s experts from testifying to the
usual criteria for admission under Rule
                                                   (irrelevant, it argues) issue of whether or
702. Moreover, in situations covered by
                                                   not latent fingerprint identification is a
Velasquez, the opposing expert’s
                                                   science; all other testimony by Mitchell’s
testimony will ordinarily be helpful to the
                                                   experts regarding the reliability of the
jury precisely because it is opposing—it
                                                   discipline, the government says, was
will help the jury to evaluate the
                                                   ruled admissible by the District Court.

                                              40
Mitchell, however, submits that the                   go with it through the life of this
District Court expressly precluded two of             case.
his witnesses (Prof. Starrs and Dr. Cole)
                                                   App. 1030a-1031a.
from testifying at trial, and severely (and
impermissibly, he submits) restricted the              The government interprets the three
scope of the testimony of his third expert         tiers as follows: First, the defense could
(Dr. Stoney). To support these positions,          challenge the specific identifications
both parties offer interpretations of the          made of Mitchell’s prints. (Something
colloquies with the District Court.                like this was actually done—M itchell put
                                                   on the fingerprint examiners who
    The government advances a three-tier
                                                   responded to the FBI survey and who
theory of the rulings of the Court on
                                                   initially did not match the latent prints
defense expert testimony, supported
                                                   found in the car to his fingerprints.)
principally by the following statement by
                                                   Second, the defense could challenge the
the District Court during the first
                                                   reliability of latent fingerprint
colloquy:
                                                   identification in general, by arguing, for
   I am not going to limit the defense             example, that the discipline lacked an
   from calling latent fingerprint                 error rate, and thus the government
   experts to testify as to the ability            expert witnesses’ testimony was
   not to identify or make an                      unreliable. (This, the government
   identification from the                         recognizes, is compelled by Velasquez.)
   fingerprints and I am also going to             Third, the defense could not put on
   allow the defense to call any latent            witnesses to speak to the essentially
   fingerprint expert who indicates                definitional question of whether latent
   that fingerprints are not reliable              fingerprint identification was a science.
   sources of identification.
                                                       The government primarily directs our
       Only for that limited purpose               attention to four points in the colloquies.
   and I am going to exclude                       First is the passage quoted above from
   evidence as to whether or not it’s              the beginning of the first colloquy,
   scientific, technical or whatever.              before counsel for either side had even
   It has no relevance before this jury            spoken. Second, moving to the second
   here. The question is whether or                colloquy (nearly five months later), the
   not an identification can be made               Court arguably suggested a more blanket
   by examination of                               exclusion of defense testimony, but the
   fingerprints—latent                             government counters that the written
   fingerprints—and the record of                  record of the colloquy is misleading
   this case, as far as the                        because the whole topic of discussion
   Daubert hearing will remain intact              had caught the Court by surprise and the
   with these proceedings and will                 Court’s recollection needed to be


                                              41
refreshed. (Indeed, for much of the                 against admitting testimony by experts
colloquy, the Court did not even have a             other than Dr. Stoney. There, the Court
transcript of the prior ruling before it.)          said, “the only one that appears close [to
Third, the government points out that               admissible] . . . would be Dr. David A.
during the second colloquy, the                     Stoney.” 26 App. 1032a. Second,
prosecutor advanced his own recollection            Mitchell points to the Court’s statement
of the ruling, saying that, in addition to          near the end of the first colloquy that “I
permitting the defense to call experts that         am not getting into the issue of latents in
would testify that the fingerprints in this         general. That’s been established,” App.
case did not match Mitchell’s, “[the                1033a, contending that this runs directly
Court] also said [to the defense] that they
can call any qualified expert . . . that
would testify that fingerprints are not               26
                                                         Mitchell bolsters this contention by
reliable sources of identification.” App.
                                                    pointing to a press release issued by the
1071a. The government emphasizes that
                                                    United States Attorney for the Eastern
this was consistent with the three-tier
                                                    District of Pennsylvania on the day of the
theory.
                                                    first colloquy. With respect to Mitchell’s
    Fourth, the government reads the                proposed experts, the press release
ultimate ruling at the end of the second            stated:
colloquy—especially the Court’s                         The Court granted the
approval of defense expert testimony by                 government’s request to exclude
experts addressing “Mr. Mitchell’s                      the testimony of the defendant’s
fingerprints or anyone else’s                           experts James E. Starrs, a
fingerprints,” App. 1072a— as a                         Professor at George Washington
reaffirmance of the three-tier ruling.                  University Law School, David A.
This should have special significance                   Stoney, Ph. D. of the McCrone
because it was the Court’s last word on                 Research Institute, Chicago, and
the subject. Finally, looking beyond the                Simon A. Cole, Ph.D. Those
colloquies, further circumstantial support              witnesses testified that fingerprint
for the prosecution’s three-tier theory can             evidence and comparisons are not
be drawn from the District Court’s ruling               scientific evidence under Daubert.
at trial that M itchell was allowed to              2d Supp. App. 1a. The government
cross-examine Agent Meagher on several              counters that this is consistent with its
issues pertaining to the general reliability        three-tier theory because the release
of latent fingerprint identification. See           characterizes the ruling as precluding
App. 1543a.                                         Mitchell’s experts from testifying about
                                                    whether latent fingerprint identification
    For his part, Mitchell first directs our
                                                    is scientific. Whatever the case, we note
attention to the first colloquy where the
                                                    that such press releases do not strike us
Court seemed to make a specific ruling
                                                    as reflecting good practice.

                                               42
counter to our holding in Velasquez.                            D. Discussion
Third, Mitchell disagrees with the
                                                       We begin our analysis with the point
government’s claim that some of the
                                                   on which the parties are in agreement:
second colloquy was colored by the need
                                                   The District Court excluded expert
to refresh the Court regarding the issue;
                                                   testimony on the subject of whether
Mitchell would have us take the Court’s
                                                   latent fingerprint identification is a
statements literally—for example a “yes”
                                                   science. We hold that it was correct to
from the Court following a statement by
                                                   do so. Kumho Tire renders the question
defense counsel that Mitchell had been
                                                   of “is it science?” immaterial to the
“precluded from introducing [testimony]
that the fingerprint field is of
questionable reliability,” App. 1067a, as
                                                       fingerprint identification
evincing agreement rather than as a
                                                       technology is reliable pursuant to
signal to “go on.” Fourth, Mitchell does
                                                       the Daubert/Kumho standards.
not read the Court’s ultimate ruling at the
                                                       We clarified that the only issue for
end of the second colloquy to be a
                                                       the experts to discuss at the
blanket authorization to put on any
                                                       Mitchell trial was whether or not
reliability-related expert testimony, but
                                                       an identification could be made by
rather a very limited approval of
                                                       examination of the specific latent
testimony assailing any government
                                                       fingerprints and the record of this
testimony that relied on a particular
                                                       case.
point-based standard for identification.
                                                   App. 5a.
This interpretation seems consistent with
                                                       We decline to rely on these
Mitchell’s counsel’s contemporaneous
                                                   statements and accept the government’s
representation that they had no witness
                                                   submission that the District Court’s
that would meet the Court’s
                                                   statements in its post-trial order are not
requirement. 27
                                                   entitled to weight. The Court was
                                                   looking back at oral rulings that were
                                                   over a year old, and made its ruling
  27
     Mitchell also contends that his               following a trial at which Mitchell had
reading of the District Court’s rulings is         not, in fact, put on experts to opine that
correct because of statements made by              fingerprint identification was not a
the District Court as part of its ruling on        reliable discipline. And at all events,
Mitchell’s Fed. R. Crim. P. 33 motion for          when the question is (as here) whether a
a new trial. In that order, the District           party has preserved the record for appeal,
Court explained that, based on its earlier         the salient issue is not what the District
rulings, the NIJ solicitation would not            Court thought it had ruled, but what the
have been admissible because:                      state of the record before us is. Thus the
    [W]e excluded any evidence at                  post-trial ruling is irrelevant to our
    trial as to whether or not                     discussion.

                                              43
jury’s determination (and the court’s, for            given witness will or will not testify—it
that matter, see supra page 36).                      has serious pitfalls for creating an
Consequently, such testimony will not                 appellate record. If an expert witness is
“assist the trier of fact . . . to determine a        excluded, it is generally because he or
fact in issue,” making the testimony not              she is unqualified; but this is irrelevant
admissible under Rule 702. Since the                  here because the parties do not dispute
evidence is opinion testimony, there is no            the qualifications of the witnesses. To be
other appropriate basis on which to admit             sure, expert witnesses may also as a
it, and so the District Court was correct             practical matter be excluded because
to exclude it.                                        they cannot testify to any admissible
                                                      subject matter. But in such a case, the
    On balance we agree with the
                                                      legally operative question is “what is
government that the District Court
                                                      (are) the proposed subject matter(s) of
consistently operated on a three-tier
                                                      the witness’s testimony?” This is
theory of what expert testimony was
                                                      necessarily so because the only way for
admissible—allowing specific criticisms
                                                      appellate courts to state the law for future
and general reliability criticisms, but
                                                      cases is to do so in terms regarding the
excluding testimony about whether latent
                                                      subject matter of proposed testimony—as
fingerprint identification is a “science.”
                                                      we did in Velasquez, for example. Thus
At the same time, we acknowledge the
                                                      speaking in terms of which witness is
force of Mitchell’s reading. But even if
                                                      admissible is actually one step removed
Mitchell’s reading were correct, he
                                                      from the legally operative question.
would not prevail because the record
                                                      Using witnesses as shorthand for subject
does not establish an affirmative
                                                      matters may be convenient, but it
exclusion of testimony that should have
                                                      becomes confusing and the law becomes
been admitted under Velasquez. Counsel
                                                      difficult to apply, especially when a
simply did not seek rulings on the
                                                      given witness testifies on multiple
admissibility of proposed expert
                                                      subject matters.
testimony, and instead simply discussed
admissibility in terms of proposed expert                 This is precisely what happened here:
witnesses. From these rulings, we cannot              All of the principal defense experts
say that the District Court erred.                    testified in some measure on whether
                                                      fingerprint identification was a
   To elaborate, both Mitchell and the
                                                      “science.” This, we have already held
District Court framed the issue as
                                                      above, was properly excluded. Those
whether a given witness was or was not
                                                      same experts also testified to the
admissible, and not as whether testimony
                                                      reliability (or lack thereof) of fingerprint
on a given subject matter was admissible.
                                                      identification. That evidence, under
While this approach may seem
                                                      Velasquez, would have been
pragmatic—after all, from a logistical
                                                      unambiguously admissible. Yet the
point of view, what matters is whether a

                                                 44
admissibility question was not, as best              could have proffered the subject matter
we can divine from the colloquies,                   of testimony he would like to present.
framed in this way.                                  Instead, he proffered the witnesses he
                                                     would like to call. Mitchell could have
    At the Daubert hearing, Mitchell’s
                                                     attempted to put his witnesses on the
counsel cast his case as an assault on the
                                                     stand to preserve his objections. Instead,
scientific status of fingerprint
                                                     they never appeared at trial.
identification. Indeed, at the Daubert
hearing, Dr. Stoney was offered as “an                   At best, Mitchell offers a modest
expert with respect to scientific status or          circumstantial case that, if he had posed
lack thereof with respect to latent                  the question of the admissibility of
fingerprint identification,” App. 761a;              defense expert testimony that fingerprint
Prof. Starrs was offered as “an exert [sic]          identification is unreliable, the District
in forensic science qualified to provide             Court would have excluded it, contrary to
an opinion as to whether latent                      Velasquez. But if the question was never
fingerprint examination meets the criteria           asked— and our review of the record
of science,” App. 813a-814a; and Dr.                 suggests it was not—then it is hardly
Cole was offered as “an expert in the                grounds for reversal that the District
field of science and technology studies              Court might have ruled incorrectly. Thus
with particular expertise regarding the              the District Court committed no error.
fingerprint profession,” App. 939a. At
no point thereafter did Mitchell attempt
to have these witnesses qualified                      V. The District Court’s Declaration
differently.                                                   of Judicial Notice
    Mitchell’s attorneys hewed to this                   We next turn to the question whether
rubric even after the hearing, and so                the District Court properly took judicial
interpreted the District Court’s (proper)            notice that “human friction ridges are
exclusion of “is it science?” testimony as           unique and permanent throughout the
a wholesale exclusion of their witnesses.            area of the friction ridge skin, including
They were not required to approach the               small friction ridge areas, and that . . .
matter in this way, and the District Court           human friction skin arrangements are
was surely not required to disabuse                  unique and permanent.” App. 1472a.
Mitchell’s counsel of this notion.                   “[A] court’s decision whether to take
Mitchell could have asked the Court                  judicial notice of certain facts is
whether Prof. Starrs and Dr. Cole would              reviewed for abuse of discretion.” In re
be permitted to testify as to the reliability        NAHC, Inc. Sec. Litig., 306 F.3d 1314,
of fingerprint identification, provided              1323 (3d Cir. 2002).
that they did not opine on the irrelevant
                                                      A. Appropriateness of Judicial Notice
issue of whether it was science. Instead,
he accepted their exclusion. Mitchell                   Federal Rule of Evidence 201(b)

                                                45
specifies what matters are the proper              ridge areas” seems problematic—what is
subject of judicial notice:28                      “small”? (In light of the issues at trial,
                                                   we imagine that it was a reference to
   A judicially noticed fact must be
                                                   areas the size of typical latent
   one not subject to reasonable
                                                   fingerprints.) Even without reference to
   dispute in that it is either (1)
                                                   the substantive standard in Rule 201(b),
   generally known within the
                                                   we wonder whether the very phrasing of
   territorial jurisdiction of the trial
                                                   the judicially noticed material signals
   court or (2) capable of accurate
                                                   that the District Court erred.
   and ready determination by resort
   to sources whose accuracy cannot                    Vagueness and irrelevance aside,
   reasonably be questioned.                       judicial notice of these matters clearly
                                                   failed Rule 201(b). The Rule requires
    The actual phrasing offered by the
                                                   that the matter “not [be] subject to
government and adopted by the District
                                                   reasonable dispute.” Yet much of
Court is opaque; while we can
                                                   Mitchell’s presentation at the Daubert
comprehend the notion that friction ridge
                                                   hearing was directed at disputing this
arrangements are permanent, we are
                                                   very proposition;29 if the question
unsure what it means to describe
                                                   merited such an extensive Daubert
“arrangements,” considered in the
                                                   hearing, it surely was not suitable for
abstract, as “unique.” On one level, this
                                                   resolution by judicial notice. Moreover,
seems irrelevant: Since the issue at trial
                                                   Rule 201 speaks in terms of “fact[s].”
was latent fingerprints, it is difficult to
                                                   Here, the Court took judicial notice of a
see how general propositions about
                                                   scientific conclusion—something which
“arrangements” are related to any “fact
                                                   is subject to revision—not a “fact.” 30
that is of consequence to the
                                                   One of the purposes of a Daubert hearing
determination of the action,” Fed. R.
Evid. 401. Moreover, “small friction
                                                     29
                                                       One of Mitchell’s own experts, Dr.
                                                   Stoney, did agree, however, that small
  28
    Rule 201 also provides that a party            areas of friction ridge skin are unique.
be “heard as to the propriety of taking
                                                     30
judicial notice,” Fed. R. Evid. 201(e);                The distinction implied by Rule
Mitchell was heard in the course of the            201(b)’s use of “fact” can be made
Daubert hearing. Further, the Rule                 clearer by the use of more polarized
requires that “[i]n a criminal case, the           examples: Matters like “February 7, 1977
court shall instruct the jury that it may,         was a Monday” (a fact) are suitable for
but is not required to, accept as                  judicial notice, while propositions like
conclusive any fact judicially noticed,”           “daily exercise reduces the likelihood of
Fed. R. Evid. 201(g), a caveat that the            heart disease” (a scientific conclusion)
Court included in the jury instructions.           are not.

                                              46
is to educate the Court as to the relevant          Cir. 1999) (quoting Murray v. United of
expertise. That the Daubert hearing                 Omaha Life Ins. Co., 145 F.3d 143, 156
consumed five days before the Court                 (3d Cir. 1998)). We conclude that the
could take judicial notice only further             error was harmless.
compels the conclusion that this “fact”
                                                        The record of the Daubert hearing
was neither “generally known” nor
                                                    establishes that the government could
“capable of . . . ready determination.”
                                                    have adduced estimable testimony—both
    The government’s defense of the                 in its quantity and quality—in place of
District Court’s taking of judicial notice          the District Court’s taking judicial notice.
focuses on the large number of cases                The ready availability of probative,
where courts have taken judicial notice             credible substitute evidence suggests
of the uniqueness of fingerprints. None             with a high probability that the jury’s
of the cases cited by the government is             verdict would not have changed had the
binding on this Court. More to the point,           District Court declined to take judicial
none of them concern judicial notice of             notice and the government been forced to
the uniqueness and permanence of “small             put on live testimony. The Court of
areas” of friction ridge skin—rather, the           Appeals for the Fifth Circuit has
cases generally concern the uniqueness              endorsed the view that the availability of
of full fingerprints, or the method of              cumulative or substitute evidence can
fingerprint identification. While we have           make admission of evidence harmless.
doubts about the propriety of taking                See United States v. Arroyo, 805 F.2d
judicial notice even in those cases (one            589 (5th Cir. 1986); cf. United States v.
need only look at our Daubert analysis              Anderskow, 88 F.3d 245, 251 (3d Cir.
above to see that the matter is in dispute),        1996) (holding that improper admission
for present purposes we need only note              of cumulative evidence is generally
that the cases cited by the government              harmless error). We also note that
are clearly distinguishable. Thus we                Mitchell was free to put on evidence to
conclude that it was error for the Court to         rebut the substance of the Court’s
take judicial notice as it did.                     judicial notice, see Gov’t of V.I. v.
                                                    Gereau, 523 F.2d 140, 147 n.17 (3d Cir.
       B. Harmless Error Analysis
                                                    1975), but did not do so.
    Having concluded that it was error
                                                       We recognize the possibility that the
for the District Court to take judicial
                                                    Sixth Amendment’s Confrontation
notice as it did, we must consider
                                                    Clause may be implicated when a court
whether the error was harmless. Under
                                                    undertakes a harmless error analysis in a
our precedent, an error is harmless if “‘it
                                                    criminal case—such as we are doing
is highly probable that the error did not
                                                    here—and bases its conclusions on the
contribute to the judgment.’” United
                                                    probable outcome of a hypothetical trial
States v. Davis, 183 F.3d 231, 255 (3d
                                                    where hypothetical witnesses are called.

                                               47
See United States v. Gallego, 191 F.3d             substitute evidence: The Daubert hearing
156, 164-65 & n.3 (2d Cir. 1999). This             record discloses a wealth of testimony on
would not present an obstacle here,                this point from credible and well-
however, because the putative substitute           qualified experts. In fact, at the Daubert
testimony was actually given at the                hearing the government asked each of
Daubert hearing and was subject there to           five distinguished expert witnesses his
cross-examination by Mitchell, who had             opinion of essentially the matters the
the same motive to attack the                      District Court judicially noticed. All five
government’s experts as he would have              took the same position as the District
had at trial. Thus the Confrontation               Court did in taking judicial notice. See
Clause would not, at all events, be                supra page 8. Thus, this was not a case
offended by our harmless error analysis.           where judicial notice replaced limited
See Crawford v. Washington, 124 S. Ct.             and shaky evidence. Any additional
1354, 1374 (2004) (“Where testimonial              authority the government drew by the
evidence is at issue, however, the Sixth           Court’s taking judicial notice was, at
Amendment demands what the common                  most, marginal. Thus we conclude that,
law required: unavailability and a prior           though error, the District Court’s taking
opportunity for cross-examination.”); cf.          of judicial notice was harmless.
Fed. R. Evid. 804(b)(1) (permitting
introduction of hearsay under these
conditions).                                       VI. Withholding of the NIJ Solicitation
    Mitchell counters that the District                Mitchell argued in his Fed. R. Crim.
Court’s declaration of judicial notice lent        P. 33 motion that the government
an imprimatur of authority to the                  violated its obligations under Brady v.
government’s fingerprint case that no              Maryland, 373 U.S. 83 (1963), by failing
amount of expert testimony could have              to disclose the solicitation for fingerprint
replaced, and no amount of rebuttal                validation studies which it ultimately
could have overcome. We acknowledge                released to the public shortly after
that the consequences of a district court’s        Mitchell was convicted. Several prongs
taking judicial notice of disputed facts           must be met to establish a Brady
can be considerable, for the unique                violation, but we need only concern
imprimatur of the district court can               ourselves— as the District Court
render judicial notice of a disputed fact          did—with Brady’s materiality prong.
not harmless, even when there is                   We agree with the District Court that,
cumulative (or substitute) evidence. But           even if Mitchell had had the solicitation
we do not think the facts here support             at trial, there was not a reasonable
that argument, principally because the             probability that he would have been
government had not only substitute                 acquitted.
evidence, but almost overwhelming


                                              48
      A. Standard of Review and                        In evaluating a Brady claim, the
           Applicable Law                          “touchstone on materiality is Kyles v
                                                   Whitley.” Id. at 1276. “[T]he materiality
    We have explained that “[o]rdinarily
                                                   standard for Brady claims is met when
we review a district court’s ruling on a
                                                   ‘the favorable evidence could reasonably
motion for new trial on the basis of
                                                   be taken to put the whole case in such a
newly discovered evidence for abuse of
                                                   different light as to undermine
discretion.” United States v. Perdomo,
                                                   confidence in the verdict.’” Id. (quoting
929 F.2d 967, 969 (3d Cir. 1991) (citing
                                                   Kyles, 514 U.S. 419, 435 (1995)). This a
Gov’t of V.I. v. Lima, 774 F.2d 1245 (3d
                                                   defendant must show by demonstrating a
Cir. 1985)). But “[b]ecause a Brady
                                                   “‘reasonable probability’ of a different
claim presents questions of law as well
                                                   result,” had the withheld evidence been
as questions of fact, we will conduct a de
                                                   available. Kyles, 514 U.S. at 434 (citing
novo review of the district court’s
                                                   United States v. Bagley, 473 U.S. 667,
conclusions of law as well as a ‘clearly
                                                   678 (1985)). This standard is relatively
erroneous’ review of any findings of fact
                                                   lenient; “[t]he question is not whether the
where appropriate.” Id. (citing Carter v.
                                                   defendant would more likely than not
Rafferty, 826 F.2d 1299, 1306 (3d Cir.
                                                   have received a different verdict with the
1987)).
                                                   evidence, but whether in its absence he
    In Brady, the Supreme Court                    received a fair trial, understood as a trial
announced that “‘the suppression by the            resulting in a verdict worthy of
prosecution of evidence favorable to an            confidence.” Id.
accused upon request violates due
                                                       Two other questions of law bear on
process where the evidence is material
                                                   the somewhat unusual circumstances of
either to guilt or to punishment,
                                                   the alleged Brady violation in this case.
irrespective of the good faith or bad faith
                                                   First, assuming that the government
of the prosecution.’” Banks v. Dretke,
                                                   acted in bad faith to withhold publication
124 S. Ct. 1256, 1267 (2004) (quoting
                                                   of the solicitation, we must consider
Brady, 373 U.S. at 87). “[T]he three
                                                   how, if at all, the bad faith aspect affects
components or essential elements of a
                                                   the Brady calculus. We are deeply
Brady prosecutorial misconduct claim,”
                                                   discomforted by Mitchell’s
the Court recently reiterated, are: “‘The
                                                   contention— supported by Dr. Rau’s
evidence at issue must be favorable to
                                                   account of events, though contradicted
the accused, either because it is
                                                   by other witnesses—that a conspiracy
exculpatory, or because it is impeaching;
                                                   within the Department of Justice
that evidence must have been suppressed
                                                   intentionally delayed the release of the
by the State, either willfully or
                                                   solicitation until after Mitchell’s jury
inadvertantly; and prejudice must have
                                                   reached a verdict. Dr. Rau’s story, if
ensued.’” Id. at 1272 (quoting Strickler
                                                   true, would be a damning indictment of
v. Greene, 527 U.S. 263, 281-82 (1999)).

                                              49
the ethics of those involved.                     for the court to consider in weighing the
                                                  materiality of the withheld evidence.
    The District Court declined to reach
                                                  The District Court erred to the extent that
the issue of whether the government
                                                  it undertook its Brady materiality inquiry
suppressed the solicitation, and it made
                                                  without evaluating and incorporating the
neither a finding of fact nor even an
                                                  government’s alleged bad faith. In the
implicit credibility determination on the
                                                  next section we will consider the alleged
conflict between Dr. Rau’s account and
                                                  bad faith in making our own materiality
the testimony of the government’s
                                                  determination.
witnesses. Thus we have no factual
determination to which we may defer.                  The second question of law that we
But as a legal matter, the question of            must address arises because the
good faith versus bad faith is a                  government proffered extensive evidence
distinction without a difference in the           to rebut Mitchell’s contentions regarding
Brady context. Indeed, the Brady Court            the solicitation. Therefore we must
itself said that its holding was                  determine whether we are to assess
“irrespective of the good faith or bad            Brady materiality by reference to a
faith of the prosecution,” 373 U.S. at 87,        hypothetical trial at which the withheld
and this was reaffirmed in United States          evidence alone is introduced, or one at
v. Agurs, 427 U.S. 97, 110 (1972) (“If            which both the withheld evidence and
the suppression of evidence results in            reasonable rebuttal evidence are
constitutional error, it is because of the        introduced. The Supreme Court has
character of the evidence, not the                made clear that the Brady (or, in its
character of the prosecutor.”). Mitchell          citations, Bagley) materiality
does not suggest, nor do we adopt, a rule         determination displaces a harmless error
of per se materiality in the face of bad          inquiry. See Kyles, 514 U.S. at 435-36.
faith withholding by the prosecution.             Thus, assuming that the Confrontation
                                                  Clause bears on this issue, see supra
    Mitchell does, however, urge us to
                                                  page 47, its significance is the same.
adopt the position enunciated in United
States v. Jackson, 780 F.2d 1305 (7th                 In deference to the possible
Cir. 1986). There the Court of Appeals            Confrontation Clause implications,
explained that the existence of bad faith         absent an opportunity for cross-
on the part of the prosecution is                 examination of prosecution rebuttal
probative of materiality because it is            evidence (which would satisfy
“doubtful that any prosecutor would in            Crawford), we will undertake the Brady
bad faith act to suppress evidence unless         materiality inquiry with reference only to
he or she believed it could affect the            the evidence withheld, and not consider
outcome of the trial.” Id. at 1311 n.4.           the prosecution’s rebuttal. We note,
We agree that the existence of bad faith          however, that the typical case will be the
on the part of the prosecution is a factor        exception to this rule: Normally a Brady

                                             50
claim will be assessed in light of an              gave two reasons why the solicitation
evidentiary hearing—as was the case                was not material under Brady: first, that
here—and the defendant will have an                it would not have been admissible, and
opportunity for cross-examination at that          second, that even had it been admitted,
hearing. Such cross-examination                    there was not a reasonable probability
satisfies Crawford, 124 S. Ct. at 1374,            that the outcome of the trial would have
and thus would clearly be properly                 changed. On appeal, the government
considered in evaluating Brady’s                   does not defend the District Court’s first
materiality prong. Since Mitchell had the          ground; the parties correctly recognize
opportunity for cross-examination in his           that under Velasquez, 64 F.3d 844, the
new trial hearing, we will consider the            solicitation would have been admissible
full record in determining whether there           both at trial and at the Daubert hearing as
is a reasonable probability that the               tending to undermine the government’s
solicitation would have changed the                claim that latent fingerprint identification
outcome of the trial.                              is reliable.
              B. Discussion                            Mitchell principally presses on appeal
                                                   that use of the solicitation at the trial
    The first Brady prong (“favorable to
                                                   itself would have had a reasonable
the accused”) is met, for the parties do
                                                   probability of changing the verdict, but
not dispute that the existence of the
                                                   we will first consider whether the
solicitation is favorable to Mitchell
                                                   solicitation was material to the Daubert
(though just how favorable it is is very
                                                   ruling, since a Daubert ruling favorable
much in dispute). We do not reach the
                                                   to Mitchell would very likely have
question whether the second prong
                                                   changed the outcome at trial. Based on
(“suppressed by the State”)—which we
                                                   our thorough review of the admissibility
have held requires that the prosecution
                                                   under Daubert of the government’s latent
have “actual knowledge or cause to
                                                   fingerprint identification evidence, see
know” of the undisclosed material, see
                                                   supra Part III, it is clear that the Daubert
United States v. Veksler, 62 F.3d 544,
                                                   calculus does not materially change in
550 (3d Cir. 1995)—is met by virtue of
                                                   light of the solicitation.
either (1) the involvement of government
experts in the solicitation’s preparation,             Mitchell’s main contention requires
or (2) the fact that the NIJ and the United        that we consider whether the absence of
States Attorney for the Eastern District of        the solicitation at trial “undermine[s]
Pennsylvania are both under the United             confidence in the verdict.” Kyles, 514
States Department of Justice. Therefore,           U.S. at 435. We assume, but do not
we confine our discussion to the third             decide, that the solicitation would have
prong (“prejudice must have ensued”).              been admissible at trial for its contents as
                                                   a non-hearsay admission of a party
   As we have noted, the District Court
                                                   opponent (the government) under Fed. R.

                                              51
Evid. 801(d)(2), and would have been                   The government’s bad faith, if any, in
admissible as impeachment evidence                 withholding the solicitation does not
under Fed. R. Evid. 801(d)(1)(A) against           appreciably alter this because intentional
Agent Meagher, who participated in the             withholding in these circumstances is
preparation of the solicitation.                   consistent not only with a guilty mind but
                                                   also with a concern on the government’s
    Mitchell hypothesizes that “[t]he jury
                                                   part that the solicitation would be
most probably would have been stunned
                                                   misunderstood. Moreover, the
to learn . . . that the government and its
                                                   solicitation would have been only a small
fingerprint experts have ‘invited’. . .
                                                   part of a large mosaic of evidence put on
‘basic research’ to determine whether
                                                   at trial about the reliability and operation
fingerprints are truly unique and testing
                                                   of latent fingerprint identification. In our
to determine whether fingerprint
                                                   view, the impact of the solicitation would
examiners can produce correct results
                                                   have been dwarfed by other evidence
with acceptable error rates.” Reply Br. at
                                                   favorable to the government.
39. If the solicitation were to be taken in
a vacuum, this might be true. But the                  Relatedly, Mitchell contends that the
government witnesses at the new trial              solicitation would have been powerful
hearing explained—and the District                 impeachment evidence against Agent
Court found as a factual matter—that this          Meagher, who was the government’s
solicitation (like other NIJ solicitations)        principal expert witness at trial, because
is not “meant to set forth the state of the        Meagher was involved in the drafting of
current research, but rather is only               the solicitation. In ruling on M itchell’s
intended to set forth sufficient                   Rule 33 motion, the District Court
information such that researchers can              credited “the testimony of the
apply for funds to perform further                 Government’s witnesses at the
research.” App. 12a. Apart from direct             Solicitation Hearing that the Solicitation
testimony from several government                  does not change their testimony
witnesses familiar with the NIJ                    regarding fingerprint technology.” App.
solicitation process, there was also               12a-13a. In other words, the District
evidence that the NIJ routinely issues             Court discounted the impeachment value
solicitations for research in other well-          of the solicitation even after having seen
established fields of forensic expertise,          Mitchell’s actual cross-examination of
such as DNA identification. Thus the               the government’s experts both with the
District Court’s finding regarding the             solicitation (at the new trial hearing) and
purpose of the solicitation is not clearly         without it (at trial). The District Court
erroneous. In that light, we conclude that         had the best vantage point, at both
a reasonable jury would not conclude               proceedings, to assess the government’s
that the solicitation was the smoking gun          witnesses (especially Agent Meagher),
that Mitchell makes it out to be.                  and we defer to its finding. See United


                                              52
States v. Perez, 280 F.3d 318 (3d Cir.           objections are required to preserve issues
2002).                                           for appeal); United States v. Gomez-
                                                 Norena, 908 F.2d 497, 500 (9th Cir.
   In sum, the solicitation does not
                                                 1990) (holding that a party fails to
undermine our confidence in the verdict
                                                 preserve an issue for appeal by making
from a substantive or impeachment
                                                 an incorrect specific objection).
vantage point. We conclude that it was
not material, and therefore reject                   Accordingly, our review is for plain
Mitchell’s Brady claim.                          error only. See United States v. Brink, 39
                                                 F.3d 419, 425 (3d Cir. 1994). To
                                                 establish plain error, a defendant must
      VII. Admission of Alleged                  prove that there is “(1) ‘error,’ (2) that is
      Prior Consistent Statements                ‘plain,’ and (3) that ‘affects substantial
                                                 rights.’ If all three conditions are met, an
    Mitchell’s final objection is to what
                                                 appellate court may then exercise its
he regards as the admission of certain
                                                 discretion to notice a forfeited error, but
prior consistent statements by the
                                                 only if (4) the error ‘seriously affects the
government’s key lay witness, Kim
                                                 fairness, integrity, or public reputation of
Chester. Mitchell contends that,
                                                 judicial proceedings.’” Johnson v.
following his attack on Chester’s
                                                 United States, 520 U.S. 461, 467 (1997)
credibility during cross-examination, the
                                                 (citations omitted).
government on redirect sought to
rehabilitate her by introducing prior                The government’s redirect
consistent statements. Mitchell’s                examination of Ms. Chester elicited three
argument is that the District Court erred        things. First, she had met with FBI
in letting the prosecution proceed as it         agents and given them a statement.
did because those statements were                Second, that statement included
hearsay not within any hearsay                   discussions of Mitchell, Bookie, and T’s
exception. We conclude that, in fact, no         activities. Third, she had testified before
hearsay was introduced, and therefore            regarding their activities. (This
Mitchell’s objection fails.                      testimony was in Mitchell’s first trial,
                                                 though the jury, of course, did not learn
    Although counsel for Mitchell
                                                 this.) The examination did not establish
objected at pertinent points during the
                                                 the contents of those prior statements,
redirect examination of Chester on
                                                 merely their existence and subject matter.
various specific grounds, no hearsay
                                                 The prosecution used the existence of
objection was made. Thus Mitchell has
                                                 these prior statements during closing
failed to preserve this objection for
                                                 arguments to bolster Chester’s credibility
appeal. See Fed. R. Evid. 103(a)(1);
                                                 with a “dog that did not bark” argument.
United States v. Sandini, 803 F.2d 123,
                                                 That is, the prosecutor offered the jury
126 (3d Cir. 1986) (holding that specific
                                                 the line of reasoning that if these

                                            53
statements existed, and they were                   statements were introduced. Rule
harmful to Ms. Chester’s credibility, then          801(c), which defines “hearsay,”
Mitchell surely would have introduced               concerns only “statements,” and so the
them. The fact that he did not, the                 first question to ask is whether the
prosecutor argued, must mean that they              government elicited a statement.
were not inconsistent, and that Ms.
                                                        “A ‘statement’ is (1) an oral or
Chester was in fact a reliable and
                                                    written assertion or (2) nonverbal
consistent witness.31
                                                    conduct of a person, if it is intended by
    Mitchell claims that the government             the person as an assertion.” Fed. R.
introduced Chester’s prior consistent               Evid. 801(a). Nonverbal conduct is
statements (to the FBI and at Mitchell’s            plainly not at issue. Chester’s prior
first trial) to rehabilitate her in the wake        statements may be oral or written
of attacks on her credibility during cross-         assertions, but they were not actually
examination. While the government’s                 introduced. Testimony about the
motive was to rehabilitate Ms. Chester,             existence of a statement is not itself a
we do not agree that any hearsay                    “statement.” Furthermore, to the extent
                                                    that Chester testified that certain matters
                                                    were discussed on prior occasions, that
  31
    The relevant portion from the                   testimony was not “offered . . . to prove
prosecutor’s closing argument was:                  the truth of the matter asserted,” Fed. R.
       Indeed, you heard, [Ms.                      Evid. 801(c), and thus not inadmissible
   Chester] had testified in a prior                under Rule 802.32 Thus the District
   proceeding. Did you hear counsel
   take the notes from that and say,
                                                      32
   well, isn’t it true you said                          In fact, the entire situation is
   something different before? No.                  analogous to the typical unremarkable
   I suggest to you that the reason                 nonhearsay use of out-of-court
   was because she didn’t.                          statements. For example, testimony that
       Did he take that statement that              “I heard another tenant in my building
   the agent took from her, the seven               complain to the landlord about a
   page statement and say, now                      dangerous condition on the stairs” is
   didn’t you say something                         admissible to prove that the landlord had
   different?                                       notice (but not that the stairs were in a
                     ***                            dangerous condition). In that case,
       You didn’t hear [defense                     testimony that someone spoke to the
   counsel] try to impeach her with                 landlord does not involve any
   the statement that she had given to              “statement” at all, and the subject matter
   the agents back in December of                   of the conversation is not “offered . . . to
   1991.                                            prove the truth of the matter asserted,”
App. 1991a, 1994a.                                  Fed. R. Evid. 801(c).

                                               54
Court committed no error.                         APPENDIX: Colloquies with the District
                                                     Court Regarding Admissibility of
    Moreover, even if Chester’s
                                                       Mitchell’s Proposed Experts.
testimony were hearsay, we would not
reverse Mitchell’s conviction, because                With the exception of identifying the
the third prong of the Johnson plain error        prosecutor and defense counsel, the
test is not met. The “substantial right”          following transcripts are verbatim the
implicated in erroneous admission of              transcript supplied in this Court. We
hearsay in a criminal trial is the Sixth          have not attempted to repunctuate it, but
Amendment Confrontation Clause. See,              have noted possible errors in
e.g., Crawford, 124 S. Ct. at 1374. The           transcription or in speaking. What
Clause has little weight when the                 follows is the District Court’s colloquy
declarant is actually on the stand, as was        with counsel following its ruling on the
the case here. Moreover, the whole issue          admissibility of the government’s expert
was collateral (it went only to                   testimony:
credibility), and Mitchell had done a
                                                  THE COURT: Counsel, the matter
relatively unconvincing job of
                                                    presently pending before the
undermining Ms. Chester’s credibility on
                                                    Court is in reference to the
cross-examination. In our view,
                                                    defense motion to exclude the
rehabilitated or otherwise, the jury would
                                                    Government’s fingerprint
have given the same weight to Ms.
                                                    identification evidence and based
Chester’s testimony.
                                                    on the Daubert hearing and also
                                                    Kumho, this court denies the
                                                    defendant’s motion and pursuant
            VIII. Conclusion
                                                    thereto, this court is not going to
   The judgment of the District Court               make a determination as to the
will be affirmed.                                   particular area of scientific
                                                    knowledge and technical or
                                                    specialized knowledge. We are
                                                    going to grant the motion with
                                                    respect to the expert pursuant to
                                                    Rule 702 and as stated in Kumho,
                                                    not only would it be difficult to
                                                    prove, but almost impossible for a
                                                    judge to administer evidentiary
                                                    rules under which a gatekeeper
                                                    obligation depending upon a
                                                    distinction between scientific
                                                    knowledge and technical or other
                                                    specialized knowledge.

                                             55
    Since there is no clear line             this case, as far as the
dividing the one from the others             Daubert hearing will remain intact
and no convincing need to make               with these proceedings and will
such distinction, therefore, this            go with it through the life of this
court does not feel compelled by             case.
any case authority to make that
                                                             ***
distinction in the case before us.
                                                 I believe, ultimately, it will be
               ***
                                             a factual determination for the
    We find that the Government’s            jury to make as to whether or not
expert witness at this juncture              there’s been a positive
appears it’s Duane Johnson [sic,             identification pursuant to
“Wilbur Johnson”?], an FBI latent            whatever standards are applicable
fingerprint examiner who testified           and make that determination, as
first in the previous trial and those        opposed to this court taking
other latent fingeprint experts that         judicial notice of that.
testified in the Daubert hearing
                                                             ***
are capable of testifying in these
proceedings and in that regard, I                In that regard, when I am
am not going to limit the defense            speaking about the defense
from calling latent fingerprint              experts, out of the three that
experts to testify as to the ability         testified—I say “experts” because
not to identify or make an                   they called a paralegal to testify,
identification from the                      but out of the three, the only one
fingerprints and I am also going to          that appears close, based on the
allow the defense to call any latent         testimony at the Daubert hearing,
fingerprint expert who indicates             would be Dr. David A. Stoney and
that fingerprints are not reliable           I say “close” because a vast
sources of identification.                   majority of his testimony dealt
                                             with the scientific aspect as
    Only for that limited purpose
                                             opposed to the latent fingerprint
and I am going to exclude
                                             reliability and his experience from
evidence as to whether or not it’s
                                             that background.
scientific, technical or whatever.
It has no relevance before this jury             All right, you can make your
here. The question is whether or             decisions and at that point in time
not an identification can be made            that you decide to make or attempt
by examination of                            to call a witness, we will have an
fingerprints—latent                          offer of proof and I will entertain
fingerprints—and the record of               it and make a determination based


                                        56
       on the offer of proof as to                 clarification. I take it we would
       whether or not the witness will             not be permitted to call Professor
       be allowed to testify as with               Starrs?
       any witness.
                                                THE COURT: Looking at his
                   ***                            testimony from the Daubert
                                                  hearing, he would not qualify
THE PROSECUTION: Just a
                                                  under my analysis based on
  clarification, your Honor.
                                                  Rodriguez?
   You first mentioned that the
                                                THE PROSECUTION: The Eleventh
   defense experts—did I understand
                                                  Circuit case is U.S. versus Paul.
   the court correctly with respect to
   the sufficiency of the latent                THE COURT: I am talking about the
   fingerprints in this particular                Third Circuit case, Vasquez. [sic,
   case?                                          “Velasquez”?]
THE COURT: Yes.                                 THE COURT: Anything further?
THE PROSECUTION: Okay and that                  THE DEFENSE: No, your Honor, not
  is likewise—                                    on this point.
THE COURT: Such as some of the                  App. 1029a-1034a.
  witnesses that were used to look at
                                                   Nothing further appears in the record
  these latents throughout the
                                                on the issue of defense experts until the
  United States.
                                                morning of jury voir dire, at which the
       If they were to call that                Court had the following colloquy with
   fingerprint expert and that                  counsel:
   fingerprint expert says, “There is
                                                THE DEFENSE: . . . And, in addition,
   no way I can make a positive
                                                  your Honor, I would like to state on
   identification from that latent
                                                  the record, to clarify my
   fingerprint,” that’s relevant for the
                                                  understanding of this Court’s pretrial
   purpose of these proceedings.
                                                  ruling, I discussed it with the
THE PROSECUTION: I wanted to                      government, I think we are in
  clarify we were talking about                   agreement as to what the Court’s
  these latents versus the issue of               ruling was. In some respects it was
  latents in general.                             not clear initially to me. I want, for
                                                  appellate purposes to put it on the
THE COURT: No, I am not getting
                                                  record.
  into the issue of latents in general.
  That’s been established.                      THE COURT: What’s that in
                                                  reference to, what ruling?
THE DEFENSE: One quick point of

                                           57
THE DEFENSE: Referring to your                  heard at the hearing, if the Court
  ruling as to the admissibility or             had so ruled.
  the partial admissibility of the
                                                               ***
  fingerprint examiners, in light of
  the Daubert hearing, entertained           THE PROSECUTION: I want one
  by the Court.                                clarification.
THE COURT: When was the                                        ***
  Daubert hearing?
                                             THE PROSECUTION: You also told
THE DEFENSE: It was over the                   them that they could call any
  summer, the exact dates, I don’t             qualified expert, meaning in the
  know. The Court’s ruling was                 field of fingerprints that would
  announced from the bench on                  testify that fingerprints are not
  September 13th of last year.                 reliable sources of identification.
                  ***                               I mean there’s a slight
                                                difference. I think the Court ruled
THE COURT: What specifically did
                                                with respect to two of the
  you have problems
                                                witnesses on the 13th, that they
  understanding?
                                                would be excluded. You did not
THE DEFENSE: Your Honor, what                   preclude Stoney or exclude him in
  my understanding of this Court’s              all respects then but you had made
  ruling, the defense may call any              a ruling, you didn’t—he had not
  witness or examiners which I’m                been fleshed out as an expert in
  prepared to do, who formed an                 fingerprints either. All I’m
  opinion as to the latent prints at            saying, that the Court let the
  issue. But, I further understood              defense try to find experts in the
  the Court to say, I was precluded             field that would say that the
  from introducing any evidence by              fingerprints are not reliable
  individuals who are of the opinion            sources of identification.
  that the fingerprint field is of
                                             THE COURT: I don’t have that
  questionable reliability, given the
                                               transcript before me.
  lack of testing, the reasons that I
  have articulated at the Daubert            THE PROSECUTION: I can hand up
  proceeding.                                  my copy.
THE COURT: Yes.                                                ***
THE DEFENSE: I would just proffer,           THE COURT: Let me refresh my
  your Honor, that I would call the            recollection as to this whole
  same three people that the Court             hearing, counsel. I’m somewhat


                                        58
      at a disadvantage since I                   likewise—
      thought this was done. Let me
                                                  The Court: Such as some of the
      refresh.
                                                  witnesses that were used to look at
       Specifically, on page four, I              these latents throughout the
   indicated: “I am not going to limit            United States.
   the defense from calling latent
                                                     If they were to call that
   fingerprint experts to testify as to
                                                  fingerprint expert and that
   the ability not to identify or make
                                                  fingerprint expert says, there is no
   an identification from the
                                                  way I can make a positive
   fingerprints and I am also going to
                                                  identification from that
   allow the defense to call any latent
                                                  fingerprint, that’s relevant for the
   fingerprint expert who indicates
                                                  purpose of these proceedings.”
   that fingerprints are not reliable
   sources of identification.”                 THE COURT: That’s what I said, any
                                                 latent fingerprint expert, who can
                  ***
                                                 look at these prints and say I can’t
THE COURT: Then I said: “Only for                make an identification or I can
  that limited purpose and I am                  make an identification.
  going to exclude evidence as to
                                               THE DEFENSE: As to these
  whether or not it’s scientific,
                                                 particular prints at issue, that’s it.
  technical or whatever.”
                                               THE COURT: That’s it, the only
                  ***
                                                 thing relevant for these
THE DEFENSE: The government                      proceedings, right.
  before that said on page six, your
                                               THE DEFENSE: Over my objection,
  Honor, in the middle of the page,
                                                 the Court ruled.
  line 18.
                                               THE COURT: Based on the facts that
       “The Prosecution: Just a
                                                 I made that ruling.
   clarification, your Honor.
                                               THE DEFENSE: Yes.
       You first mentioned that the
   defense experts—did I understand            THE COURT: Anything further?
   the Court correctly with respect to
                                               THE PROSECUTION: Just again for
   the sufficiency of the latent
                                                 clarification, your Honor, not
   fingerprints in this particular
                                                 clarification but the statement, so I
   case?
                                                 understand on page four, you also
   The Court: Yes.                               said that they can call any
                                                 qualified expert in the field that
   The Prosecution: Okay and that is
                                                 would testify that fingerprints are

                                          59
   not reliable sources of                       identification, whether it is Mr.
   information, not limited to those             Mitchell’s fingerprints or anyone
   latents, but if they can get a                else’s fingerprints, based on 10,
   qualified expert in the fingerprint           20, 15, you are permitted to call
   field to come in here to say, well,           that expert.
   I’m a qualified expert in
                                                               ***
   fingerprints. Fingerprint
   identification is not a reliable           THE DEFENSE: No one to present
   source of identification, they have          the testimony as your Honor
   the option and the ability to do             outlined.
   that?
                                              THE COURT: I don’t know that.
THE DEFENSE: That’s what we
                                              THE DEFENSE: I’m representing
  would have done with Dr. Stoney,
                                                that.
  we did at the hearing, that he has
  the opinion that the field is of            THE COURT: That’s what you are
  questionable reliability.                     representing to the Court.
THE COURT: He is going to say, a              THE DEFENSE: There would, yes,
  scientific and technical                      sir, there would be Dr. Stoney’s
  determination?                                testimony, that there is—it is of
                                                questionable reliability because
THE DEFENSE: That the Court ruled
                                                there’s no testing done in the
  on.
                                                field. Not to be redundant, similar
THE COURT: That the Court ruled                 to what he testified to.
  on. That’s fine, that’s complete.
                                              THE COURT: The record will
  But, in that regard, though, if you
                                                remain as his testimony that you
  have a latent fingerprint expert
                                                presented at these proceedings.
  who will testify, an expert or a
                                                Whether or not you call him in
  person in latent fingerprints can’t
                                                reference to latent fingerprint
  make a positive identification with
                                                identification is your call.
  10 points, 15 points, 40 points,
  then you are permitted to—you               THE DEFENSE: Right. That would
  can call that expert to testify, it           be similar to the other two people
  doesn’t have to do with just his              that I would call.
  particular points, that one can find
                                              THE COURT: Very well.
  but in general, if you have an
  expert, a latent fingerprint expert         THE DEFENSE: Simon, Cummins,
  that can testify that a person                Professor Starr.
  cannot, a person in the field, an
                                              THE COURT: The other individuals
  expert in the field cannot make an

                                         60
      that testified at the Daubert
      hearing?
THE DEFENSE: Yes.
App. 1065a-1074a.




                                      61
