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United States v. Hendrix

United States District Court, W.D. Washington, Seattle

January 2, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES J. HENDRIX, Defendant.

          ORDER GRANTING MOTION TO EXCLUDE TESTIMONY

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court is Plaintiff United States of America's (“the Government”) motion to exclude Professor Simon Cole's testimony at trial. (Mot. (Dkt. # 142); see also Reply (Dkt. # 163).) Defendant James J. Hendrix filed an opposition to the Government's motion and an affidavit from Professor Cole. (Resp. (Dkt. # 155)). Additionally, the court heard testimony from Professor Cole at the December 6, 2019, Daubert[1] hearing on the proposed testimony from the Government's fingerprint examiner, Kristi Riccobuono. (See 12/6/19 Hearing Transcript (Dkt. # 156).) The court has considered the parties' submissions, the testimony of Professor Cole, the relevant portions of the record, and the applicable law. Being fully advised, the court GRANTS the Government's motion and excludes Professor Cole from testifying at the trial.[2]

         II. BACKGROUND

         A. The Government's Fingerprint Analysis

         On June 21, 2018, officers from the Seattle Police Department (“SPD”) arrested Mr. Hendrix in the parking lot of an auto repair shop. (See Def. Tr. Br. (Dkt. # 128) at 2.) SPD officers found Mr. Hendrix standing next to the open driver's door of a U-Haul truck. (See id.) After the officers located a shotgun under the driver's seat of the U-Haul, they arrested Mr. Hendrix. (See Id. at 2-3.) SPD impounded the U-Haul and obtained a warrant to search it. (See Gov't Tr. Br. (Dkt. # 106) at 6.) SPD latent print examiner Kristi Riccobuono conducted latent fingerprint analyses on a number of items found within the U-Haul. (See Riccobuono Rept. (Dkt. # 90-1) at 1.) Ms. Riccobuono concluded that a fingerprint on one of the firearm magazines found within the U-Haul “was identified to the left index finger of James Joseph Hendrix.” (See Id. at 3.)

         B. Ms. Riccobuono's Daubert Hearing

         On November 21, 2019, the Government disclosed its intent to call Ms. Riccobuono to testify about the results of her analysis at Mr. Hendrix's trial. (Gov't Disc. (Dkt. # 90-3) at 3.) Mr. Hendrix moved to exclude Ms. Riccobuono, and the court held a Daubert hearing to determine whether her proposed testimony was admissible. (See Mot. to Exclude Riccobuono (Dkt. # 78); 12/6/19 Hearing Transcript.) Professor Cole, Mr. Hendrix's proposed expert, appeared and testified at that hearing. (See 12/6/19 Hearing Transcript at 31-48.)

         At Ms. Riccobuono's Daubert hearing, Ms. Riccobuono explained that she used the ACE-V methodology to examine the fingerprint taken off the magazine. (See Id. at 12:3-13:19; 18:20-24.) Ms. Riccobuono described the ACE-V methodology in detail and testified that ACE-V is generally accepted in the scientific community, peer-reviewed, researched, the subject of publications, repeatable, and “considered a best practice among fingerprint examiners.” (See generally Id. at 8-19.) Based on her application of the ACE-V methodology, Ms. Riccobuono concluded that there was “identification” to Mr. Hendrix for the fingerprint taken off the magazine. (See Id. at 18:20-24.) According to Ms. Riccobuono, “identification” does not mean that her conclusion is subject to a “zero error rate or what could be described as infallibility.” (See Id. at 19:18-20.) Instead, “identification” means that “when you have the prints side by side, the available information within those prints are in agreement to determine that they are from the same source.” (See Id. at 19:10-17.)

         On cross-examination, Mr. Hendrix's counsel asked Ms. Riccobuono about the error rates in two specific latent print examination studies. (See Id. at 20:18-22:2.) Although Ms. Riccobuono was not able to recall the exact error rates from those studies, she testified that she was familiar with those studies and was able to provide testimony about them. (See id.) Ms. Riccobuono also testified that she had some familiarity with a report from the President's Council of Advisors on Science and Technology (“PCAST”) on latent print analysis. (See Id. at 25:2-7.)

         After Ms. Riccobuono concluded her testimony, Professor Cole testified. (See generally Id. at 31-48.) Professor Cole is not a fingerprint examiner. (See Id. at 37:17-19.) As such, he readily acknowledged that he “is not qualified to give an opinion on the source of a latent print.” (See Id. at 37:22-25.) Instead, Professor Cole's knowledge of fingerprint analysis is derived from professional literature. (See Id. at 38:1-4.) He has a Ph.D. from Cornell University in Science and Technology Studies, which is “a field of social science that tries to understand the making of scientific knowledge.” (See Id. at 31:24-32:4.) He testified that he teaches courses on “forensic science, law, and society, ” “miscarriages of justice, ” “the death penalty” and “surveillance in society.” (See Id. at 42:19-22.) Professor Cole has also published books on the history of fingerprint identification and a number of academic articles in his field. (See Id. at 32:8-11; see also Cole Curriculum Vitae (Dkt. # 125-1).)

         Professor Cole's direct examination focused almost entirely on the PCAST report. According to Professor Cole, the PCAST report “concluded that it would be okay to use latent print analysis in court . . . subject to a number of caveats.” (See Id. at 33:24-34:4.) Specifically, Professor Cole testified that the PCAST report recommended that the fact-finder receive certain information about the error rate for latent print analysis and the studies that had been done on error rates for latent print analysis, and that certain “anti-bias” measures should be used in conducting latent fingerprint analysis. (See Id. at 34:5-19.) Professor Cole concluded that he “agree[s] with the approach taken by PCAST, which is that [fingerprint testimony] is admissible subject to these caveats, and these caveats do not all appear to have been met in this case.” (See Id. at 36:9-15.) Professor Cole did not specify which caveats, in particular, Ms. Riccobuono's testimony failed to satisfy. (See generally id.)

         After Ms. Riccobuono and Professor Cole testified, the court heard argument from counsel for both parties as to the admissibility of Ms. Riccobuono's testimony under Daubert. (See Id. at 51-58.) Instead of attacking the relevance and reliability of Ms. Riccobuono's testimony, however, Mr. Hendrix's counsel focused much of his argument on Mr. Hendrix's “alternative” request to excluding Ms. Riccobuono-allowing Professor Cole to testify as a rebuttal expert about the PCAST report. (See Id. at 51:6-12.) Mr. Hendrix's counsel argued that he felt it was important to “get the error rates to the jury” from the PCAST report and other studies referenced in that report, and that his preference would be to have Professor Cole “synthesize” that information for the jury. (See Id. at 52:7-23.)

         The court orally denied the motion to exclude Ms. Riccobuono. (See Id. at 59:11-63:19.) The court found that Ms. Riccobuono was qualified to testify under Federal Rule of Evidence 702 and that her testimony was both relevant and reliable. (Seeid.) In so ruling, the court specifically rejected Professor Cole's conclusion ...


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