Fingerprint evidence under scrutiny: Issues raised by six international forensic reports (Part 1)

• Jurisdiction: South Africa
• Author: Lirieka Meintjes-van der Walt
• Date: 11 September 2019
• Published date: 11 September 2019
• Pages: 155-180
• Citation: (2019) 32 SACJ 155

Fingerprint evidence under

scrutiny: Issues raised by six

international forensic reports

(Part 1)

LIRIEKA MEINTJES-VAN DER WALT*

& MERCY CHIWARA**

ABSTRACT

In an attempt to scrut inise the scienti c, and therefore legal, value of

ngerprint evidence, th is article, in t wo parts, inter rogates problems and

challenges with regard to  ngerprint evidence, which have been c ritically

discussed and evaluated i n six seminal i nternational forensic repor ts

compiled between 200 6 and 2017. The incisive, authoritative and extensive

reports which are ex amined and inter rogated in this ar ticle, include a 2007

report on a review of the FBI’s hand ling of the Brandon May eld case

(Mayeld Report) (consisting of 275 pages); the 2009 report compiled by t he

National Research Counci l (NAS Report) (consisting of 350 pages); the 2011

Scottish Fingerpr int Inquiry Rep ort (SFI Report) (consisting of 750 pages);

the 2012 National Institute of S cience and Technology Report (NIST Re port)

(consisting of 249 pages), the 2016 Forensic Science in Criminal Cour ts:

Ensuring Scienti c Validity of Feature- Comparison Metho ds Report by the

President’s Council of Advisors on Science a nd Technology (PCAST Report)

(consisting of 174 pages) and the 2017 Forensic Science Assessments:

A Quality and Gap A nalysis: Latent Fingerprint Exam ination of the American

Association for the Advancement of Science (A AAS Repor t) (consisting

of 166 pages). Part 1 of the article focusses on the M ayeld report and

the NAS Report. Par t 2 deals with the SF I Report, the NIS T Report, the

PCAST Report a nd the AAA S Report. Part 1 o f this article su mmarises

the recommendations of t he rst two report s and concludes with a short

discussion of the effect s of the NAS Report on c ase law.

1 Introduction

The discipline of frict ion ridge analysis was the rst forensic discipline

to catch the public’s imagination and it provides a valuable tool for

police and crim inal investigator s.1 It has been of great assistance in

* BJuris LLB (UPE) LL M (Rhodes) LLD (Leiden); Adjunct Professor of Law & L eader of

the Law, Science and Justice Resear ch Niche Area, Universit y of Fort Hare.

** LLB LL M (UFH).

1 JD Gabel ‘Realiz ing reliabilit y in forensic science from t he ground up’ (2014) 104

JCrim L & Crim’y 283 at 352.

155

(2019) 32 SACJ 155

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shaping a large number of crimina l cases worldwide and for more than

a century, the matching of ngerprints col lected from the crime scene

and the known print of the suspect ha s been used in the identication

of perpetrator s.2 The forensic discipline of ngerprint identication has

played a pivotal role in solving many crimes that would otherwis e have

gone unsolved.3 The basis for the acceptance of ngerprint evidence

as a tool for the identication of a perpetrator, is that every ind ividual

is presumed to have unique prints, which are per manent and which

can be transferred to any sur face.4 It is undeniable that ngerprints,

if used properly and if the methodology of exam ination, comparison

and evaluation is followed correctly, can play an important part in

courts for securing convictions a nd exonerating innocent people. It

would therefore be irrational and disast rous to abandon the use of

ngerprints as evidence to identif y suspects because of the li mitations

associated with t he technique.

Nevertheless, courts should not turn a bli nd eye to the intrinsic

shortcomings of the nature of ngerpr ints with regard to uniqueness

and permanence,5 method s of collection, analysis, and interpretation

of the evidence, as these factors have a strong impact on the weight

to be given to the evidence. Although ngerprint exponents a rgue

that ngerprints are u nique, this does not necessari ly prove the

accuracy of ngerpri nt identicat ion.6 There have been no published,

peer-reviewed studies directly ex amining the extent to which people

2 SL Cooper ‘Challenges t o ngerprint identication e vidence: Why courts need a new

approach to nalit y’ (2016) 42 Mitch Hamline L Rev 756.

3 Committee on Ident ifying t he Needs of the Forensic Scie nce Community, National

Research Council Strengthening Forensi c Science in the United St ates: A Path

Forward (2009) 4 (NAS Repor t).

4 J McMurtrie ‘ Swirls and whorls: Litigat ing post-convict ion claims of nger print

misidenticat ion after the NA S Report’ (2010) 2 Utah L Rev 267-273. See also

N Bened ict ‘Fingerprin ts and the Daubert st andard for admi ssion of scientic

evidence: Why ngerpr ints fail and a pr oposed remedy’ (200 4) 46 Ariz L Rev 527-

528. See also PE Peterson et a l ‘The role and impac t of forensic evidence in the

crimina l justice process’ (2010), available at https://ww w.ncjrs.gov/pdfles1/nij/

grants/231977.pdf, accessed on 23 March 2017.

5 It has been found that the a ssumptions of un iqueness and indiv idualisation are

‘neither empirical ly based nor plausible’. G Edmond, MB Thompson and JM Tangen

‘A guide to interpreting foren sic testimony: scienti c approaches to ngerpr int

evidence’ (2013) 13 Law, Probability & Risk 1-25 at 15; SA Cole ‘Forensics without

uniqueness, conclusion s without individualiz ation: the new epistemology of forensic

identication’ (200 9) 8 Law, Probability & Risk 233 at 23 4.

6 J Mnookin ‘Finger prints: Not a good st andard’ Issue s in Science and Technolog y

(2003), available at issues.org//mnookin/, accessed 24 August 2016. See also

J Koehler and M Saks ‘Individual ization claims in foren sic science: Still unwarra nted’

(2010) 75 Brooklyn L Rev 1187-1208. See also S Cole ‘Individual ization is dead, long

live individual ization! Reforms of re porting pract ices for ngerpri nt analysis in the

United States’ (2014) 13 Law, Probability an d Risk 117-150.

156 SACJ . (2019) 2

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