Admissibilityand Reliability
Fingerprint comparison and analysis hasbeen admittedas competent and reliable evidence inNorth Carolinacourtsformany years. See, e.g.,State v. Miller, 289 N.C. 1 (1975)(court noted the accuracy and general use of fingerprint evidence for identification purposes); State v. Hoff, 224 N.C. App. 155 (2012) ("Our Supreme Court has long recognized the validity of fingerprint analysis. The only limitation [the Supreme Court] has imposed on the admissibility of fingerprint comparisons to prove the identity of the perpetrator of a crime is a requirement that the testimony be given by an expert in fingerprint identification. This well-established precedent is controlling on defendant's admissibility argument.") (internal citations omitted); State v. Parks,147 N.C. App. 485 (2001)(noting that Supreme Court has “recognized that fingerprinting is an established and scientifically reliable method of identification”). Federal courts applying theDaubertstandard have likewise found fingerprint comparisons to be reliable and admissible. See UnitedStates v. Crisp, 324 F.3d 261 (4thCir. 2003)(“the district court was well within its discretion in accepting at face value the consensus of the expert and judicial communities that the fingerprint identification technique is reliable”).
Fingerprint evidence isadmissible to identify the defendant as theperson who committed a crime with proof that:
- The fingerprints were found at the crime scene,or on an object related to the crime;
- The prints correspondto(i.e.,matchor are consistent with) the defendant’s prints; and
- The prints were made by the defendant at the time of the crime.
SeeState v. Irick, 291 N.C. 480 (1977)(probative value of fingerprint evidence depends on whether the fingerprints could have been impressed only when the crime was committed); State v. Wright, 76 N.C. App. 673 (1985)(when fingerprints are found inside residential premises where a crime has been recently committed and there is evidence of non-access to such premises by the accused at any time other than the time of the offense, the state has carried its burden to establish that the fingerprints could only have been impressed at the time of the offense); see also State v. Jeter, 326 N.C. 457 (1990)(fingerprint and palmprint evidence found at the crime scene, coupled with strong circ*mstantial evidence that the nights of the offenses were the only occasions when defendant’s prints could have been made at the respective premises, was sufficient to allow evidence of a similar rape and burglary that occurred five months earlier at a location about five miles away); but see State v. Bass, 303 N.C. 267 (1981)(defendant explained the presence of the prints by testifying that he broke and entered the home and committed larceny three or four weeks before the crimes charged were committed - state offered no explanation for the presence of defendant’s prints,and no additional evidence connected defendant to the crimes;defendant’s motion for dismissal should have been allowed).
Testimony by a qualified expert that fingerprints found at the crime scene correspond with the defendant’s fingerprints, when accompanied by substantial evidence of circ*mstances from which the jury could find that the fingerprints could only have been impressed at the time the crime was committed, is sufficient to support a conviction. SeeState v. Montgomery, 341 N.C. 553 (1995)(providing a thoroughreview of the case law on this issue);State v. Pittman, 10 N.C. App. 508 (1971). See alsoKenneth S. Broun,Brandis and Broun on North Carolina Evidence,§?113, n. 438 (7th ed. 2011).
Photographs of latent prints or the defendant’s fingerprint impressions may be used as substantive or illustrative evidence after laying a proper foundation.SeeG.S. 8-97(Photographs as substantive or illustrative evidence); see also G.S. 8C-1, Rules 1001 (Content of Writings, Recordings and Photographs – Definitions), 8C-1002 (Requirement of Original); State v. Foster, 284 N.C. 259 (1973) (this case was decided before the enactment of G.S. 8-97, but it is consistent with it).Palmprintorfootprint evidenceissubject to the same admissibility requirements as fingerprint evidence. SeeState v. Banks, 295 N.C. 399 (1978),and the related entry on Footprint and Shoeprint Expert Testimony.
Introductionof Fingerprint Evidence
The introduction of fingerprint evidenceusuallyinvolves the testimony of two witnesses. The first witness is the officeror agentwho processed and lifted the latent fingerprintsfrom the scene or a recovered object, and the second witness istheexaminerwho compared those latent prints with the defendant’s fingerprints.
Officer/AgentWho Processed and Lifted Latent Fingerprints
The law enforcement officeror SBI agentwho processed the crime sceneor objectfor fingerprints and liftedthelatent fingerprints should explain those procedures,andtellthe jurywhere and when the latent prints were foundandwhat was then done with the latent lifts.The officer who lifted the latent fingerprints should also establish a chain of custody of those prints.For a discussion of chain of custody, seeState v. Abernathy, 295 N.C. 147 (1978)andState v. Shore, 285 N.C. 328 (1974).
The officer who lifted the fingerprintsdoesnothave to bequalified as an expert witness(sincehe or shewill not beasked to state an opinion about the identity of the person who made the prints),butit isusuallystillhelpful toask questions about the officer’s background and training to show the jury the officer’s ability to lift prints properly. Additionally, even ifthe officer is nottendered asan expert,he or she can still testify about the difference between latent lifts and fingerprints based upon his or her practical experience in working with fingerprints. SeeG.S. 8C-1, Rule 701(Opinion testimony by lay witness);State v. Caddell, 287 N.C. 266 (1975)(fingerprint expert may compare prints processed and lifted by others, regardless of the training of the latter);State v. Shore, 285 N.C. 328 (1974)(trial court did not err in admitting officer’s testimony that he had lifted latent fingerprints from an adding machine at the crime scene even though officer had not been qualified as an expert, because the officer’s testimony indicated that he had been lifting prints for ten years, was well qualified to perform the procedure, and because the officer made no attempt to express an opinion whether the prints were defendant’s);but seeState v. Robinson, 330 N.C. 1 (1991)(when fingerprints werenotfound at crime scene, fingerprint expert at trial was improperly permitted to testify that he had discovered identifiable fingerprints in only three percent of the cases in which he had been involved –court ruled that presence or absence of identifiable fingerprints at other crime scenes is not relevant to presence of absence in this case;butcourtalsonoted thatpursuanttoState v. Holden, 321 N.C. 125 (1987),anexpert may properly testifyas towhyfingerprints are sometimes not left behind afteran object has been touched).
Photo Enhancements
Sometimesalatent print collected at the scene will not be detailed or clear enough to use for a comparison, but it can be enhanced through photographic means to generate a print that can be compared to other prints. The examiner willthenconduct his or her analysis using theenhancedphotograph, rather than the originallatentprint.If photo enhancements were used in the case, the agent who created the photographs shouldtestifytoexplain theprocesshe or she used and lay the foundation tointroduce the photos into evidence.
If the agent who created the photos is not available to testify,the prosecutorcanargue thatthe photo enhancements are“of a type reasonably relied upon by experts in the particular field in forming opinions,” and thereforeareadmissibleas part of the latent printexaminer’s expert testimony under Rule 703. For more information, including cases addressing similar “basis of opinion” issues which have been decided post-Crawford, see the related entry on Crawfordand Substitute Analysts.
ExaminerWho Compared Latent Prints with Defendant’s Fingerprints
Theexamineror analyst who compared the latent prints with the defendant’s fingerprint impressionsand will be asked to state an opinion about theidentity of the latent prints (that is, whether both sets of prints were made by the defendant) must be qualified as an expert. Although it is possible to qualify a witness either expressly or implicitly from his or her testimony, the better practice is to expressly tender the witness to the court as a fingerprint identification expert after laying a proper foundation. SeeG.S. 8C-1, Rule 702 and 703;State v. Banks, 295 N.C. 399 (1978)(fingerprint expert’s testimony that palmprint found at the scene of the assault was defendant’s was properly admitted to corroborate the prosecuting witness’s identification of defendant as the perpetrator of the crime);State v. Helms, 218 N.C. 592 (1940)(fingerprint expert’s testimony about the comparison of defendant’s fingerprints with those found at the crime scene, which could only have been impressed at the time the crime was committed, was admissible as substantive evidence tending to show that defendant was present when the crime was committed and that heparticipated in its commission); see alsoState v. Short, 322 N.C. 783 (1988)(fingerprint evidence was properly admitted despite failure of officer to make identification and despite failure of witness to use photographs to illustrate his testimony).
Verification by Supervisor orOther Agent
Once the examiner makes a preliminary determination that there is a match between the latent print on lift card and the known standards of the defendant, that preliminary match usually has tobe reviewed by a supervisororanother experienced analyst to confirm the resultsbefore they areconsidered“final.”The testifying examiner should be permitted to testify about that verificationprocessif it factored intothe basis ofthewitness’sownopinion. SeeState v. Quick, 329 N.C. 1 (1991)(trial court did not err in allowing agent to testify that another agent verified his identification of defendant’s fingerprint; agent gave his own uncontroverted opinion identifying the print, and the testimony was admissible to establish a basis for the expert opinion);State v. Jones, 322 N.C. 406 (1988)(SBI fingerprint expert was properly permitted underRule 703to testify that another SBI latent examiner verified his opinion for the limited, non-hearsay purpose of showing the basis for his opinion).For more informationon this issue,including cases addressing similar “basis of opinion”issuesthathave beendecided post-Crawford, see the related entry on Crawford and Substitute Analysts (section D-3, "Verification").
Obtainingthe “Known Standard” Prints of Defendant
AdultFingerprints
A sample ofthedefendant’s fingerprints is necessary to compare with the latent fingerprints found at the crime scene. A defendant who is arrested may be fingerprinted as provided byG.S. 15A-502oralocal fingerprint plan underG.S. 15A-1383, and thatfingerprint card may be used for comparison with any latent lifts. If the defendant has not been arrested, then fingerprint samples may be obtained by using a nontestimonial identification order underArticle 14 of Chapter15A. However, anontestimonial identification ordergenerallymay not be used when a defendant is in custody. Instead, an officershouldobtaina search warrantor court orderauthorizing thecollection procedure.For more information, see therelatedentry on Nontestimonial Identification Orders.
JuvenileFingerprints
Juvenile fingerprints are collected, and may be used for comparison purposes, in the following circ*mstances:
a) An officermustfingerprint a juvenile who is in the officer’s physical custody andwhowas at least10 yearsoldwhenhe or sheallegedly committed anondivertibleoffense (seeG.S. 7B-1701for list of these offenses)for whicha complainthas been prepared for filing as a petition.SeeG.S. 7B-2102(a).
b) Ifajuvenile has notalreadybeen fingerprinted underG.S. 7B-2102(a), an officer or agency must fingerprint a juvenile who has been adjudicated delinquent, if the juvenile wasat least10 yearsoldwhen thehe or shecommitted an offense that would be a felony if committed by an adult. See G.S. 7B-2102(b).
c) Ajuvenile must be fingerprinted if his or her case is transferred to superior court for trial as an adult. See G.S. 7B-2201.
If none of the circ*mstances described above apply, an officer must obtain a nontestimonial identification order to fingerprint a juvenile.For more information, see the related Juvenile entry on Identification Procedures.
Admissibility of Fingerprint Card at Trial
A booking sheet, FBI fingerprint card, or other document containing a defendant’s fingerprint impressions may be admissible for fingerprint comparison and identification purposes, but the fingerprint card should be redacted sothatit does not reveal prior crimes charged against the defendant oranyother potentially prejudicial information. SeeState v. Jackson, 284 N.C. 321 (1973).
Practice Pointer
What else could it be?
If the print card comes from a prior arrest of the defendant, itmaybedifficultfor the witness to avoid mentioning that fact, even if the particular detailsof theprior offense are redacted from the card. PerJackson, any “inference”arising from thistype of incidental testimony is not of “such force as to prejudicially influence the jury in their consideration of the question of defendant's innocence or guilt.”284 N.C. at 333;see alsoState v. McKnight, 87 N.C. App. 458 (1987)(finding no Rule 404(b) violation for using print card from a prior arrest: “As identity was an important issue in the case, the State offered the exhibit for the sole purpose of identifying the latent fingerprints taken from the credit application completed by the individual suspected of the larceny and submitted in the name of a Larry F. McKinney.”)
To avoid a distractingobjectionduring the witness’s testimony, theprosecutor may want to raise thisissue with the court before the witness testifies, and eithersecure astipulation from the defense asto the admissibility of theprintcard,orreach anagreementthat the witness willsimplydescribe the fingerprinting process ingeneraltermsthat are acceptable to both parties,such as “…thesefingerprints were taken aspartof our agency’s routine record-keeping procedures…” and leave it at that.
The fingerprint cardcanbe authenticated by testimony of the officer who fingerprinted the defendant, by arecordscustodian who establishes that it is part of the records or files of the office, or by anyother qualifiedofficer from the law enforcement agency who is familiar with how fingerprint recordsare made and kept.If the person whoactuallyimpressed the defendant’s prints ontothe fingerprint card being offered into evidence is not available to testify,the state shouldseekto admit the defendant’s fingerprint card as a business record under Rule 803(6).SeeState v. Windley,173 N.C. App. 187 (2005)(admission of the fingerprint card without the testimony of the officer whopersonallyimpressed the defendant’s fingerprints on the card did not violateCrawford v. Washington, 541 U.S. 36 (2004)because the fingerprint card was admissible as a business recordandthereforewasnot testimonial); State v. Carroll, 356 N.C. 526 (2002),cert. denied,539 U.S. 949 (2003)(stating that fingerprint cards are “clearly admissible” under the business recordsexception to the hearsay rule).
