United States District Court, E.D. New York
L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
Court assumes the parties' familiarity with the facts and
procedural history of this motion. 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. For the reasons set forth below, the
government's motion is granted.
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)).
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]
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. Therefore, the government argues Dr.
Cole's opinion goes to the weight of the government's
evidence, not its admissibility. Id. at
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).
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.
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 ...