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United States v. Pitts

United States District Court, E.D. New York

February 26, 2018



          DORA L. IRIZARRY, Chief United States District Judge

         Defendant Andrew Lee Pitts is charged with attempted bank robbery pursuant to 18 U.S.C. § 2113(a). See Indictment, Dkt. Entry No. 11. On November 11, 2016, the government disclosed its intention to call expert witnesses regarding fingerprint and handwriting analysis. Gov't Ltr. dated Nov. 10, 2016, Dkt. Entry No. 16. On August 29, 2017, Defendant moved to preclude the government from offering expert opinion evidence that latent fingerprints and handwriting recovered at the crime scene are a match to the Defendant, and, alternatively, for an evidentiary hearing regarding the same. Mem. of Law in Support of Mot. to Suppress Opinion Testimony (“Mot.”), Dkt. Entry No. 25; Reply to Resp. to Mot. to Suppress Opinion Testimony (“Reply”), Dkt. Entry No. 44. The government opposed Defendant's motion. Resp. in Opp'n (“Opp'n”), Dkt. Entry No. 43. For the reasons set forth below, Defendant's motion is denied in its entirety.


         On or around September 9, 2016, Defendant allegedly entered a branch of Chase Bank located at 22-30 31st Street, Astoria, New York, with the intent to rob the bank. See Compl., Dkt. Entry No. 1, at ¶ 3. Defendant approached the manager at a teller window and handed her a withdrawal slip that had written on it: “HAND OVER ALL 100, 50, 20 I HAVE A GUN I WILL SHOOT.” Id. The manager told Defendant that she did not have any money. Id. Defendant then pointed at the note, and the manager again said that she did not have any money. Id. Defendant then fled on foot without any money, leaving behind the withdrawal slip. Id. at ¶¶ 3, 5.[1] Latent fingerprints obtained from the withdrawal slip matched fingerprint impressions in a law enforcement database previously provided under the name “LEE A. PITTS.” Id. at ¶ 5. The New York Police Department (“NYPD”) arrested Defendant on September 21, 2016. Id. at ¶ 6.

         On August 29, 2017, Defendant filed the instant motion pursuant to Rule 702 of the Federal Rules of Evidence (“FRE”) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), seeking to preclude the government from introducing expert opinion testimony as to latent fingerprint and handwriting analysis. See generally, Mot. Defendant simultaneously disclosed his intention to call three experts at a Daubert hearing and trial: (1) Simon Cole, Professor at the University of California, Irvine, Department of Criminology; (2) Nancy Franklin, Professor at Stonybrook University, Department of Psychology; and (3) David Stoney, Chief Scientist at Stoney Forensic. See Def.'s Ltr. dated Aug. 29, 2017, Dkt. Entry No. 30. Defendant's proposed experts would testify regarding “fingerprint methodologies and [the] psychology of identification.” Id. At the time of the disclosure, Defendant had not yet secured a handwriting expert, and requested additional time to do so. Id.[2]

         On September 7, 2017, the Court struck Defendant's August 29 letter and expert disclosure as insufficient. See Minute Entry dated Sept. 7, 2017. On September 12, 2017, Defendant filed a revised expert disclosure with additional information about the topics upon which his proposed experts would testify and the experts' respective curricula vitae. See Def.'s Ltr. dated Sept. 12, 2017, Dkt. Entry No. 33. Defendant filed additional expert disclosures with respect to Mr. Cole on January 24, 2018. See Exhibit B to Opp'n (attachment to Def.'s Ltr. dated Jan. 24, 2018, Dkt. Entry No. 41, which does not appear on the docket).[3]

         The government intends to call four experts from the NYPD at trial: (1) Latent Prints Detective Arthur Connolly, who initially identified the fingerprints at issue; (2) Detective Joseph Cooper, who verified Detective Connolly's identification; (3) Detective James Maloney, who performed a technical review of the fingerprint analysis; and (4) Criminalist Patricia Zippo, who is a handwriting examiner and concluded that Defendant “probably may have” written the demand note found at the crime scene. Opp'n at 2-4.

         Defendant contends that recent reports by the President's Council of Advisors on Science and Technology (“PCAST”) and the National Academy of Sciences (“NAS”) call into question the reliability of fingerprint analysis and warrant the exclusion of such evidence. See Mot. at 8-10; Exhibit D to Declaration of Michael L. Brown II (“Brown Decl.”), President's Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016) (“PCAST Report”), Dkt. Entry No. 29; Exhibit C to Brown Decl., National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009) (“NAS Report”), Dkt. Entry No. 28. Specifically, Defendant relies on the NAS Report's conclusion that the fingerprint analysis method of Analysis, Comparison, Evaluation, and Verification (“ACE-V”) lacks scientific credibility. See Mot. at 10 (citing NAS Report at 143 (“We have reviewed available scientific evidence of the validity of the ACE-V method and found none.”)). Defendant also contends that fingerprint analysis error rates are higher than jurors anticipate, and fingerprint analysts misleadingly claim that fingerprint analysis has a zero or near zero error rate. See Mot. at 8-10; Reply at 8-10. Although Defendant criticizes the government for not providing information regarding the NYPD's fingerprint analysis error rates (Mot. at 9), Defendant's motion generally is directed at the overall reliability of fingerprint analysis, and does not claim that the NYPD has made a misidentification in this case.

         With respect to handwriting analysis, Defendant relies principally on the decision by the Hon. Jed S. Rakoff, United States District Judge for the Southern District of New York, in Almeciga v. Center for Investigative Reporting, Inc., 185 F.Supp.3d 401 (S.D.N.Y. 2016). In Almeciga, the court relied on the NAS Report and precluded expert opinion testimony by a handwriting analyst on the basis that handwriting analysis fails the Daubert test since: (1) there are no studies testing its reliability; (2) it is not subject to peer review; (3) there is little information about error rates, and available information indicates that error rates are high; (4) it lacks objective standards; and (5) it lacks general acceptance among the scientific community. See Mot. at 15-16 (citing Almeciga, 185 F.Supp.3d at 419-23).

         In opposition, the government points out that an addendum to the PCAST Report, which Defendant failed to identify in his opening brief, undermines many of Defendant's fingerprint analysis arguments. See Opp'n at 22-23 (citing Exhibit D to Opp'n, Addendum to PCAST Report (“PCAST Addendum”)). The PCAST Addendum notes that, with “latent fingerprint analysis, ” PCAST found “clear empirical evidence” that “the method[ology] met the threshold requirements of ‘scientific validity' and ‘reliability' under the Federal Rules of Evidence.” PCAST Addendum at 2. Additionally, the government argues that, although fingerprint analysts at one time testified that their methodology has zero or near zero error rates, that is not what the current view among practitioners is, and not what the government's expert would testify to. Opp'n at 21-22.

         With respect to handwriting analysis, the government argues that Almeciga is “meaningfully” distinguishable from the facts here. Id. at 33. Almeciga involved, inter alia, analysis of a forgery, which is a more difficult handwriting analysis with a higher error rate; testimony by an analyst infected with bias by the counsel that hired her; and a purported “scientific” identification without testimony as to the scientific basis for the identification. Id. at 35-38 (citing Almeciga, 185 F.Supp.3d at 413-26). The government also contends that the Advisory Committee Notes to the Federal Rules of Evidence provide that experience is a basis for qualifying an expert, and specifically reference handwriting experts as an example of experts qualified based on experience. Id. at 33 (quoting Fed.R.Evid. 702, 2000 Advisory Cmte. Note). The government requests that the Court deny Defendant's request for a Daubert hearing since courts in this Circuit routinely admit fingerprint and handwriting evidence. Id. at 26, 34-35. For the reasons set forth below, Defendant's motion is denied.


         I. Legal Standard

         Under Rule 702 of the FRE and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the court acts a gatekeeper in determining the admissibility of purported expert testimony. To be admissible, expert testimony must “rest[] on a reliable foundation and [be] relevant to the task at hand.” Daubert, 509 U.S. at 597. The court's inquiry is “a flexible one, ” Id. at 594, but Rule 702 requires that: (1) an expert have “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue”; (2) the testimony be “based on sufficient facts or data”; (3) the ...

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