Wednesday, December 24, 2003

7th Circuit Upholds Fingerprint Testimony in Unusual Context

The Seventh Circuit has published a decision upholding the testimony of an ATF fingerprint expert. See United States v. Bowman, No. 02-4387 (7th Cir. Dec. 23, 2003) (Posner, Kanne, & Evans, JJ.). What makes the decision unusual is that the ATF expert, who testified for the prosecution, did not match any prints to the defendant, nor indeed to any human being at all.

The defendant in Bowman was charged with unlawful possession of a firearm by a felon. At trial, the issue of possession hinged (or probably should have hinged) primarily on witness credibility. Two police officers had stopped the defendant's vehicle after observing it in an alley, being driven without headlights, in the dark. The defendant's driver's license had expired, and so the police arrested and searched him. The arresting officer testified at trial that during the search, he discovered a handgun in the defendant's jacket pocket, removed it, and made it "safe" by removing the mazagine from the gun and a bullet from its chamber. The arresting officer's partner, who witnessed the arrest, corroborated that testimony. The defendant offered testimony from three family members and friends who also observed the arrest, and who testified that no gun was retrieved from the defendant.

So far, so good. But the prosecution also called an experienced ATF fingerprint expert, who testified that he recovered a latent palm print and thumbprint from the gun. The expert said neither print belonged to the defendant, and that neither had been positively identified. The prosecution then asked the expert whether the location of the thumbprint on the gun was consistent with someone making the gun "safe." Over defense counsel's vigorous objection, the expert was permitted to testify that it was. Defense counsel mounted a vigorous cross-examination, but the jury convicted.

On appeal, the defendant argued that although the ATF agent's expertise in fingerprint identification was unchallenged, he had not been qualified as an expert in gun handling, and that his opinion on the origin of the print was not founded on reliable methods and data. The Seventh Circuit opinion gives short shrift to this argument, in light of the expert's experience, over a 37-year career, in analyzing prints on thousands of weapons, and the witness's ability, on the stand, to demonstrate his familiarity with the weapon and the process of making it "safe."

The defendant's stronger argument, relegated in the Seventh Circuit's opinion to a footnote, may have been that the testimony was more prejudicial than probative. After all, the testimony tended to show, at most, that some human being may have removed the gun's magazine, and/or a bullet from its chamber, at some point during the gun's lifetime. Because such events are routine occurrences in the biography of almost every handgun, the probative value of the testimony seems to approach the vanishing point, absent any testimony matching the prints to the arresting officer.

Faced with the task of upholding a conviction they consider essentially righteous, the appellate courts commonly invoke the harmless error doctrine, at least in the alternative. That path was open to the Seventh Circuit in Bowman, but the panel chose not to travel down it. One reason may be that the core theory of the defendant's case was that the handgun was planted -- an issue that would have boiled down to a swearing contest, but for the ATF expert's testimony, and as to which that testimony may well have broken any tie in the jurors' minds. A "harmless error" ruling might not ring true, in such circumstances.

Because the controversy in Bowman does seem to have been primarily a matter of weight, which any juror of reasonable intelligence could evaluate, the appellate outcome may be defensible. All the same, the government's use of such insubstantial "expert" testimony seems vaguely disquieting, as does the Seventh Circuit's failure to see any real difficulty with it. The expert's opinion was near the fringes of his expertise, if not beyond it. And this is the sort of case in which the witness seems to have been called more to impart the sheen of expertise to the prosecution's theory, than for any probative value his testimony may truly have contained -- a problem that could have been averted, perhaps, if the same testimony had been offered, say, by the arresting officer, in the form of lay opinion.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.