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United States v. Pitts

United States District Court, E.D. New York

March 2, 2018




         Andrew Lee Pitts (“Defendant”) is charged with attempted bank robbery pursuant to 18 U.S.C. § 2113(a). See Indictment, Dkt. Entry No. 11. On August 29, 2017, Defendant disclosed his intention to call at trial Dr. Simon Cole, Professor at the University of California, Irvine, Department of Criminology, as an expert in fingerprint methodologies. See Def.'s Ltr. dated Aug. 29, 2017, Dkt. Entry No. 30. On September 12, 2017, Defendant filed a revised expert disclosure that included additional information about Dr. Cole's proposed testimony and his curriculum vitae. See Def.'s Ltr. dated Sept. 12, 2017, Dkt. Entry No. 33. Defendant filed additional expert disclosures with respect to Dr. Cole on January 24, 2018. See Exhibit B to Resp. to Mot. to Suppress (“Jan. 24 Disclosure”), Dkt. Entry No. 43-2.

         On February 23, 2018, the government moved to preclude Dr. Cole's testimony. Mot. to Exclude Expert Testimony of Simon A. Cole (“Mot.”), Dkt. Entry No. 45. Defendant opposed the government's motion. Mem. in Opp'n to Mot. to Exclude Expert Testimony of Prof. Simon A. Cole (“Opp'n”), Dkt. Entry No. 47.


         The Court assumes the parties' familiarity with the facts and procedural history of this motion.[1] The government contends that preclusion of Dr. Cole's testimony is necessary for three reasons: Dr. Cole (1) is “not a trained fingerprint examiner”; (2) “has not published peer-reviewed scientific articles on the topic of latent fingerprint evidence”; and (3) “has not conducted any validation research in the field.” See Mot. at 1-2. As such, the government maintains that his testimony will not assist the trier of fact in understanding the evidence or determining a fact in issue. In opposition, Defendant argues that Dr. Cole's testimony is necessary “contrary evidence” that will assist the trier of fact, and that preclusion will violate Defendant's constitutional rights. See generally, Opp'n.[2] For the reasons set forth below, the government's motion is granted.


         I. Legal Standard

         Rule 702 of the Federal Rules of Evidence (“FRE”) includes a threshold requirement that an expert's testimony “will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702(a). In determining whether to admit expert testimony, courts also consider an expert's qualifications and whether the proposed testimony is based on reliable data and methods. Karavitis v. Makita U.S.A., Inc., 2018 WL 627491, at *1 (2d Cir. Jan. 31, 2018) (summary order) (citing Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005)). The proponent of proposed expert testimony bears the burden of proof in establishing admissibility by a preponderance of the evidence. Id. (citing United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)).

         II. Analysis

         The government urges the Court to adopt the reasoning of several other courts that have precluded Dr. Cole's testimony. Mot. at 1-2 & n.1 (collecting cases precluding Dr. Cole's testimony); See, e.g., People v. Caradine, 2012 WL 599252, at *15-16 (Cal.Ct.App. Feb. 23, 2012) (precluding Dr. Cole's testimony based on a lack of “training [and] expertise” and describing his testimony as merely “relating a bunch of things he has read”); State v. Armstrong, 920 So.2d 769, 770 (Fla. 2006) (noting that Dr. Cole's testimony was a “general critique of the predicate underlying fingerprinting as a method of identification” and would “not be probative as to whether the latent prints lifted from the scene match [the defendant's] fingerprints”).

         The government additionally contends that Dr. Cole's testimony will not assist the trier of fact. Mot. at 1-2. Specifically, the government points out that Dr. Cole's only disclosed opinion is that the government's expert's testimony “‘exaggerates the probative value of the evidence because such testimony improperly purports to eliminate the probability that someone else might be the source of the latent print.'” Mot. at 2-3 (quoting Jan. 24 Disclosure). “Professor Cole fails to provide any analysis of why latent fingerprint evidence [in general] is so unreliable that it should not be submitted to the jury or, if such evidence can be reliable in some circumstances, what precisely the NYPD examiners did incorrectly in this case.” Id. at 3. Dr. Cole is not expected to testify that the identification made by the government's expert in this case is unreliable or that the examiners made a misidentification. See Id.[3] Therefore, the government argues Dr. Cole's opinion goes to the weight of the government's evidence, not its admissibility. Id. at 5.[4]

         In opposition, Defendant contends that Dr. Cole's testimony is necessary “contrary evidence” that calls into question the reliability of fingerprint analysis. Opp'n at 1-2 (citing Buie v. McAdory, 341 F.3d 623, 625 (7th Cir. 2003)). He further argues that precluding Dr. Cole's testimony violates his due process and confrontation rights under the Fifth and Sixth Amendments to the United States Constitution. Id. at 2-3. (citing Herrera v. Collins, 506 U.S. 390, 398-99 (1993); Coy v. Iowa, 487 U.S. 1012, 1017-18 (1988); Ake v. Okla., 470 U.S. 68 (1985); Buie, 341 F.3d at 625). Finally, Defendant argues that Rule 702's liberal standard for admissibility and Dr. Cole's status as a “skilled witness” who can assist the trier of fact weighs against preclusion. Id. at 2-5 (citing Fed.R.Evid. 702 Advisory Comm. Notes).

         The Court is not convinced that Dr. Cole's testimony would be helpful to the trier of fact. The only opinion Defendant seeks to introduce is that fingerprint examiners “exaggerate” their results to the exclusion of others. See Mot. at 3 (citing Jan 24. Disclosure). However, the government has indicated that its experts will not testify to absolutely certain identification nor that the identification was to the exclusion of all others. Mem. of Law in Opp'n to Def.'s Mot. to Suppress, Dkt. Entry No. 43 at 18 (emphasis original) (“[N]either the government nor the NYPD latent prints examiner intend to offer evidence to the jury that the identification . . . has been made with absolute (100%) certainty or that the identification . . . has been made to the exclusion of all others.”). Thus, Defendant seeks admit Dr. Cole's testimony for the sole purpose of rebutting testimony the government does not seek to elicit. Accordingly, Dr. Cole's testimony will not assist the trier of fact to understand the evidence or determine a fact in issue. See Fed. R. Evid. 702.

         Moreover, the substance of Dr. Cole's opinion largely appears in the reports and attachments cited in Defendant's motion to suppress the government's experts' opinion testimony. See 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; Exhibit B to Brown Decl., More Than Zero, supra n.2, at 1034-49. For example, Dr. Cole's article More Than Zero contains a lengthy discussion about error rates in fingerprint analysis and the rhetoric in conveying those error rates (See More Than Zero at 1034-49), and the PCAST Report notes that jurors assume that error rates are much lower than studies reveal them to be (PCAST Report at 9-10 (noting that error ...

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