The Only Evidence on a Burglary and Grand Theft was Fingerprints — Is That Enough?

fingerprints2-216x300Any time several folks get together to form a group, there’s always a risk bad things will happen.  One of the minor annoyances of people “organizing” is that they’ll end up developing their own corny lingo.  Not only do I dislike this sort of thing, but I’m more guilty of it than most (I’m not offended by my own hypocrisy, of course.  Why not aim for good things, even if you don’t attain them every single time?).

My first violation of the English language involves church stuff.   I belong to a church that is guilty of “Christian speak.”  Trust me, if you haven’t heard Christian speak, its annoying.  At its core, this language is basic virtue signalling.

For example, no one calls themselves a Christian  anymore, Christian-speak now has us referring to ourselves as “disciples”, with everyone busy working on their “ministry”.  Yes, this is virtue signalling at its finest.  That being said, this never stops me from poking fun at celebrity virtue signalers.  My church is minor league versus Hollywood.  Just try getting thru a talk show without either the host or guest explaining their commitment to various “causes”.  Again, virtue signalling.  Heck, even me telling you I belong to a particular church qualifies. Yes, I’m a hypocrite.

SIDE BAR: Jesus didn’t use Christian speak, so I’m not sure why churches have adopted such un-Christ-like attitudes.  For example, Jesus promised the thief hanging on the cross next to him that “Today you will be with me in paradise“.   Did this thief chanting some magical Christian speak that opened the doors to paradise?   Most religions claim you can only get to paradise if you belong to their church, their faith, following their rules.  Nobody gets into paradise but us.  We’re the only club members who know “the Truth”, right?  Hum.  I don’t see any of that in Jesus’ words in Luke 23:43.  Most religions have added text to Jesus’ words here, and would now claim that the thief who was promised paradise today couldn’t–actually–get there without doing some mission work, being baptized, and of course the big one–belonging to the correct religion.  Read Luke chapter 23 and I think you’ll agree that Jesus is pretty generous with his paradise admission policy–no magic words and no special religious memberships required.  I’m just saying.

Anyway, science has its own battles with language, and its own battles with the truth.  This plays out quite frequently in the criminal courts, where we have rules on what is considered “science,” and what isn’t.

One interesting battleground for science in the courtroom involves fingerprints.  Its been a few years since I’ve ranted about the so-called science of matching fingerprints, but suffice it to say that an “expert” cannot go up in front of a jury and claim that one fingerprint “matches” another fingerprint.  I know what you’re thinking, I’ve seen a lot of movies, and admitting fingerprints is never a problem, right?  Wrong.  It’s a problem.

Basically, the problem is one of language.  The fingerprint expert wants to tell the jury that “the fingerprints found on the firearm match the defendant’s fingerprints.”  But you can’t say that.  You can’t say that because its not, scientifically, true.

Here’s why.

Our fingers have 75 to 175 unique loops and ridges. When the police match 12 unique identifiers, they claim that 12 out of 175 constitutes an  identical match. And historically, the fingerprint expert then tells the jury that the fingerprints on the murder weapon “match” the defendant’s fingerprints.

But what did they really do?  They only matched 12 identifiers out of, possibly, 175.  And this lack of accuracy is why, today, many judges will not allow police experts to tell the jury that there’s a “fingerprint match”.  After all, they’ve only matched 12.  Would 20 out of 175 constitute an identical match?  What if 120 out of 175 matched, but the others didn’t match?  It wouldn’t be the same person, would it?  FYI, Scotland Yard requires 16 unique matches, but Florida only requires 12.

Dade County Judge Milton Hirsch exposed the probability issues here years ago, and began a trend in Florida courts prohibiting the state from telling a jury that the  fingerprints of a defendant matched those found at a crime scene.  One of the best court orders you will ever read comes from State v. Berrego,  where Judge Hirsch lays out the history of fingerprint analysis (Dade Case No. F12-101, October 25, 2012).

So, this long intro brings us to the real life case under review today.  A real life home burglary.  Here’s what happened:

A lady comes home from work, only to find her bedroom drawers pulled out, her entire closet emptied, and the blinds on her bedroom window were mysteriously up.  She called the police, and reported her late husband’s wedding ring missing, her sleeping pills missing, her mother’s rosary missing, and her loaded handgun missing.

The police found three fingerprints.  One on the outside of the entry window in the bedroom, one on the inside of that window, and one in her son’s bedroom.

This lady had a neighborhood kid help her put up a Christmas tree.  He also purchased a sailboat from the victim, in exchange for doing odd jobs. You know where this is going–those three fingerprints were, supposedly, a match to this neighborhood helper.

Basically, the fingerprints were the sole evidence used to convict the teenage neighbor of burglary of a dwelling, grand theft of a firearm, and grand theft third degree.   T.T.S. v. State,  2018 Fla. App. LEXIS 11513 (Fla. 4th DCA 2018).  He was never found with any of the stolen merchandise, and never seen nearby.  Nothing but prints here.

You may be asking yourself, “what if this kid wandered into the bedrooms while helping out with the Christmas tree?”  Well, when the teenager was interviewed by the police, he told them he had never been in the back bedrooms.  And with that bit of testimony, the kid was convicted of burglary of a dwelling, grand theft of a firearm, and grand theft third degree (jewelry).

The kid appealed his convictions, asserting that there wasn’t enough evidence.  Unfortunately, the appellate court disagreed, claiming that there was nothing wrong with the evidence presented.

I think the appellate court got it wrong.  They should have thrown out these convictions.  The problem is the claim that the three fingerprints “belonged to the juvenile“.  Hum.  Was that really proven?  I doubt it.

In fingerprint cases, to avoid what happened to T.T.S., we defense attorneys should file a Motion in Limine asking the judge to keep out (limit) the following testimony:

  1. the fingerprint examiner cannot testify to having found a “match”
  2. the fingerprint examiner cannot testify that the defendant is the only possible source of the fingerprint
  3. ask the judge to prohibit the fingerprint examiner from testifying about his level of confidence in his own testimony (these folks are drunk on their own Kool-Aid, of course they’re 100% positive that the defendant is the only person who matches those prints).

Judge Milton Hirsch’s Order can be found here:  Judge Hirsch Order on Defendants Motion in limine fingerprints.  (I’m sorry that some of the pages are upside-down).  This order is a must read, Judge Hirsch is brilliant.  I know what you’re thinking: John is just kissing some judge’s ass to get a good ruling next week.  Nope.  I don’t practice in front of Judge Hirsch.  Ever.  I practice in Central Florida, 4 hours away.