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32.2 Fingerprint

    32.2.1 Fingerprint Evidence: Cautionary Instruction
    32.2.2 Improper To Characterize Prosecution Witness As Fingerprint “Expert”
    32.2.3 Fingerprints: No Speculation As To Why Defendant’s Fingerprints Were On File
    32.2.4 Fingerprint Evidence: Expert Testimony Not Binding
    32.2.5 Challenging Prosecution Forensic Evidence: Fingerprints

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RATIONALE: When the prosecution relies primarily upon fingerprint evidence, the jury may not understand that such evidence is insufficient to convict unless the evidence establishes that the defendant left the fingerprints at the time of the crime and that this fact, together with all of the other evidence, proves the defendant’s guilt beyond a reasonable doubt.

POINTS AND AUTHORITIES: The cases which discuss the sufficiency of fingerprint evidence to support conviction turn on whether the prosecution has established that the fingerprints must have been left at the time of the crime. For example, in People v. Ang (CA 1962) 204 CA2d 553, 554-56 [22 CR 455], People v. Amador (CA 1970) 8 CA3d 788, 790 [87 CR 662], and People v. Massey (CA 1961) 196 CA2d 230, 234 [16 CR 402], the fingerprint evidence was held to be sufficient because it supplemented other evidence which supported a reasonable inference that the prints were made during the course of the crime.

    On the other hand, People v. Johnson (CA 1984) 158 CA3d 850, 855 [204 CR 877] and Birt v. Superior Court (CA 1973) 34 CA3d 934, 937 [110 CR 321] held the evidence to be insufficient.

    In Johnson, the police forced entry into a house containing a laboratory used to manufacture PCP. The defendant was found standing in the kitchen. Directly overhead, the officers discovered a recess in the ceiling in which two bottles of PCP were hidden. The defendant's thumbprint was on one of the bottles. The Johnson court held the evidence insufficient to convict the defendant of possessing PCP for sale. "'[T]here is a limit to the mileage that can be obtained from the fingerprint evidence ... [t]he only fact directly inferable from the presence of the fingerprint... is that sometime, somewhere defendant touched the container.  [People v. Jenkins (CA 1979) 91 CA3d 579, 584].'"  (Johnson, 158 CA3d at 855.)

    In Birt, the court of appeal held evidence of the defendant's fingerprints on a cigarette lighter in a rental vehicle containing loot from a residential burglary was insufficient even to bind him over for trial. Said the Birt court: "At most, the presence of [defendant's] fingerprint on the lighter found on the front seat showed that, at some unknown time and place, she had been inside the van; but there was no direct or circumstantial evidence to indicate when and where that had been. Only by guesswork, speculation, or conjecture can it be inferred that [defendant] was inside the van, or in the area, at the time of the .... burglary." (Birt, 34 CA3d at 938.)

    The companion cases of Borum v. U.S. (DC Cir. 1967) 380 F2d 595, 596 and Stevenson v. U.S. (DC Cir. 1967) 380 F2d 590, 592 are also consistent with this analysis. In Borum, the court of appeals reversed a conviction for house breaking even though Borum's fingerprints were found on ordinary glass jars that had been emptied of a "valuable coin collection" during the burglary. The jars were generic and the fingerprints could have been on them for years. The reviewing court thought it decisive that the government failed to show that the jars were inaccessible to the defendant. (Ibid.) "The jury may have thought that [defendant] never had any opportunity to touch the jars outside the house either before or after complainant bought them. But that conclusion would have been based on speculation alone." (Stevenson, 380 F2d at 597.) On the other hand, the conviction of codefendant Stevenson was affirmed because his fingerprints were found on a tea canister to which there was no reason to suppose the defendant could have had access. (Stevenson, 380 F2d at 592; see also Mikes v. Borg (9th Cir. 1991) 947 F2d 353; McGhee v. State (MD 1968) 243 A2d 41, 42 ["It is generally recognized that fingerprint evidence found at the scene of a crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime"]; McNeil v. State (MD 1961) 176 A2d 338; Commonwealth v. Ali (MA 1997) 684 NE2d 1200, 1209; State v. Bridge (WA 1998) 955 P2d 418, 419-20; State v. Luca (WA 1990) 784 P2d 572, 575.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

OPINION AVAILABLE: Click here. [Opinion Bank # O-220].

USE NOTE: When Fingerprint Evidence Is The Only Evidence.  In some cases, fingerprint evidence may be the only evidence of guilt. For example, the government might seek a murder conviction where the defendant's fingerprints are found on the murder weapon even if no witness can place the defendant at the scene of the crime. (See Mikes v. Borg (9th Cir. 1991) 947 F2d 353.) In such a case, it may be appropriate to instruct that the fingerprint evidence, standing alone, cannot support a conviction. (Id., at 361 ["in a case resting upon the premise that the defendant impressed his fingerprints on an object at the time of the commission of the crime and supported solely by evidence that the defendant's fingerprints were found on that object, the record must contain sufficient evidence to permit a jury, applying the beyond a reasonable doubt standard, to draw the inference that the defendant touched the object during the commission of the crime"; see bracketed paragraph 2 of Sample Instruction # 1 and Sample Instructions # 2 and # 3.)

    Fingerprints by themselves do not establish that the defendant committed the crime charged. They establish only that the defendant touched the item in question.

    You may not vote to convict the defendant based on fingerprint identification alone, unless the prosecution has proved beyond a reasonable doubt that:

    1.    Fingerprints left by the defendant were found, and 

    2.    The fingerprints could only have been left by the defendant at the time of the commission of the crime, and 

    3.    That such identification under all the fact and circumstances of the case is sufficient to prove the defendant's guilt beyond a reasonable doubt.

[Cf., GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES p. 151 (D) (7/91) [Fingerprints] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991).]

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PRACTICE NOTE: Using the term "expert" in jury instructions may improperly mislead the jury into giving greater weight to the evidence than is appropriate. (See FORECITE National™ 6.2.15 [Deletion Of The Term "Expert" From Expert Witness Instruction].) The practice of labeling a witness as an expert may be especially prejudicial with regard to fingerprint evidence. (See e.g., State v. Melton (NC 1971) 180 SE2d 476, 478 [court improperly emphasized to jury that it had found the witness to be an expert].)

    See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].

MOTION AVAILABLE:  For a Motion to Exclude Fingerprint Identification Evidence and Request for a Hearing Pursuant to People V. Kelly (1976) 17 C3d 24, Or, in the Alternative, Motion for Funds to Retain Fingerprint Experts and to Permit Their Testimony Before the Jury, click here.  [Motion Bank # M-3015].

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RATIONALE: If the jury learns that the defendant’s fingerprints were on file with the police (for example, through the testimony of a fingerprint expert), the jury may improperly convict the defendant based on the assumption that he or she has committed prior criminal offenses.

POINTS AND AUTHORITIES: The testimony of a prosecution fingerprint expert may imply that the defendant had a prior record by informing the jury that the defendant had fingerprints on file. Hence, it may be appropriate to exclude such testimony and/or give a cautionary instruction. (See e.g., State v. Rodriguez (CT 1995) 658 A2d 98, 111; Owens v. State (NV 1980) 620 P2d 1236, 1238; People v. Woods (NY 1987) 520 NYS2d 632.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5].

    The fact that _____________ (law enforcement agency) is in possession of a person’s fingerprints does not mean that the person has a criminal record. Fingerprints are taken for many purposes other than criminal activity.  These include, but are not limited to: birth certificates, grade school child identification programs, military service, many forms of employment, including municipal, county, state and federal jobs, casino license applications, private security guard applications, firearms and liquor license applications, passport applications, as well as other sources totally unconnected with criminal activity.

[See State v. Rodriguez (CT 1995) 658 A2d 98, 111; see also Owens v. State (NV 1980) 620 P2d 1236, 1238; People v. Woods (NY 1987) 520 NYS2d 632; NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 1 (II) Other Non-2C Charges [Fingerprints] 1/6/92 (New Jersey ICLE 4th ed. 1997); see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4.43.70, ¶ 2 [General Instructions-Fingerprints] (West, 1999).]

    In your absence, this fingerprint card was admitted into evidence as a full exhibit, but I want to give you a couple of instructions now. The other cards which were offered were not accepted into evidence and you must disregard those cards. You didn't see the cards, but disregard all of the testimony concerning the other cards. And I want to give you an instruction concerning this card which I did admit into evidence. And again, that is the fingerprint card to which ______________ (name of witness) has been testifying. And that's been admitted into evidence for a limited purpose and that is identification. Do not speculate as to the reason for the fingerprinting of the defendant. There are many reasons that individuals are fingerprinted and I'm sure many of you are aware of this. Fingerprints are taken for various civil service positions, various job applications, security clearances, etc. There really are a number of reasons that police departments are called upon to take fingerprints of members of the community.  And, any time they're taken, the police department keeps a record of those prints on file. So don't speculate as to the reason here that the prints were taken originally. But again, the fingerprint card is admitted into evidence for identification purposes.

[See State v. Rodriguez (CT 1995) 658 A2d 98, 111.]

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RATIONALE: Without a cautionary instruction the jury may give undue emphasis to the testimony of a fingerprint expert.

POINTS AND AUTHORITIES: Because of the unique nature of fingerprint evidence it may be appropriate to specifically instruct the jurors that fingerprint evidence is not binding upon them. In such an instruction the jury should be informed that an expert is presented to assist the jury in its deliberations and the jury may disregard the expert’s testimony either in whole or part. (See People v. Woods (NY 1987) 520 NYS2d 632, 632; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:43.70 (Cum.Supp) [General Instructions-Fingerprints] (West, 1999).)

    See also FORECITE National™ 29.2.1 [Duty To Instruct On Testimony of Expert Witness].

    See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.3; 7.5].

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