Lawyer trashes fingerprints

| 17/09/2009

(CNS): In a controversial and bold bid to get the fingerprint evidence against his client thrown out, defence counsel for Josue Carillo-Perez, Anthony Akiwumi, has argued that not only is the Crown’s fingerprint examiner not an expert witness but the whole concept of latent fingerprint evidence is flawed and unreliable and should therefore not be admitted. Perez is accused of murdering Martin Gareau at his Beach Bay home in May 2008 and has denied being present at the scene, but the Crown is relying heavily on two latent finger prints that it says match Perez.

In the first full day’s proceedings in Perez’s murder trial (Wednesday 16 September), defence and Crown counsel were engaged in legal arguments before the judge.

In his lengthy submissions, which relied not only on legal authorities but academic work, Akiwumi put forward the theory that latent fingerprint evidence was not scientific and could not be relied upon. He suggested that fingerprint examiners were not experts but subjective witnesses offering only opinions. He said their methodology was questionable in general, but in this case in particular even more so as there are no set standards on what number of ridge characteristics would constitute a match.

Akiwumi also pointed to the bias that he said was inherent in the craft of fingerprint matching, as he said examiners are routinely just given a print of a suspect and then a latent print from a crime-scene and asked to match them.

Akiwumi claimed that just because fingerprinting had been claimed as infallible for as long as it had did not mean it was a perfect science. He said error rates were alarmingly high and cited a number of cases where serious mistakes had occurred – including a case where an American lawyer had been accused of the “Madrid bombings” in 2004 because of an incorrect fingerprint match. He was eventually released when the prints were also found to match an Algerian national.

He also illustrated a number of other errors that he said undermined the long held theory that fingerprints are unique – a theory that has never been proved scientifically.

He compared the claims made by fingerprint examiners that when they match a print it is so conclusive no one else in the world could possibly be considered, against DNA, which is considerable more scientific, but despite its high levels of probability on matches, DNA experts never make claims to the exclusion of all others. He said the critical flaw with fingerprint matching was that examiners were not allowed to offer a probability and could only say that a latent print matched an individual with certainty, it ruled them out, or the print was inconclusive.

Akiwumi’s submissions focused heavily on discrediting the long held belief that fingerprint evidence was sacrosanct, and likened himself to Galileo persuading the church that the earth was round. He said that no real studies on the technique had ever been done to prove the science of latent fingerprinting and said it was no better than the turn of the 19th century theories of morphology, in which people claimed that an individual’s criminal tendencies were written in their facial features.

Aside from attacking the fallibility of latent fingerprint evidence, he also took aim at the Crown’s own RCIPS fingerprint examiner based on his witness statements submitted for trial. Akiwumi suggested William McKay had given no explanation for how he had concluded that Perez was a match for the prints found at the murder scene other than “I say so” and that he had originally said the prints did not match. He questioned the proposed witness’s lack of a college education and said that he had not followed his own methodology for matching correctly.

“A mere belief by a witness is not enough,” Akiwumi told the court. “Fingerprint examiners have elevated their craft and say they have the ability to determine exclusively what is a match.”

In response, Trevor Ward, counsel for the Crown, in a considerably shorter response said that it would be quite remarkable if 100 years of jurisprudence was jettisoned, emphasising the widely accepted quality of fingerprint evidence as he dismissed Akiwumi’s submissions.

Referring to the fact that fingerprint evidence has been so commonly accepted without question, Ward relied on its long history to justify why the judge should not throw out the expert’s evidence. He said that defence argument depended heavily on a few legal cases that were not authorities, and where decisions had been made by judges to throw out print evidence, these had later been overturned or reversed. He also suggested that the defence counsel’s academic source had been discredited and was himself not a scientific fingerprint expert.

Ward noted that people had been convicted for capital offence on the basis of one print alone and the court of appeal had shown “tremendous confidence in the reliability of print evidence” and persistently upheld convictions made just on latent prints.

“It has long been known that fingerprint patterns vary from person to person,” said Ward. He added that fingerprint evidence is admissible in law and that it is the judge’s role as gatekeeper to warn juries where necessary about the issue regarding expert opinion on evidence.

He said fingerprinting was far from a new concept and he accused of Akiwumi of failing to offer binding authorities that the method is unscientific. Ward, however, did accept that errors have been made but said that couldn’t be used to undermine fingerprint evidence. Above all, Crown counsel noted that there was simply no legal basis for the court to exclude the fingerprint expert evidence. “The technique is sound and well recognised in the scientific community,” Ward added.

Tthis morning (Thursday 17 September) before the Crown opens its case against Perez, the judge, Justice Roy Anderson, will make his ruling on the expert witness testimony on the two fingerprints found at the scene of the murder, which the Crown contends belong to the accused.

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