In re O.D

In In re O.D. (2013) 221 Cal.App.4th 1001, the minor claimed fingerprint evidence should have been excluded under Kelly "because there was no longer 'general acceptance' of fingerprint comparison 'in the relevant scientific community.' (People v. Kelly (1976) 17 Cal.3d at p. 30.)" (O.D., supra, 221 Cal.App.4th at p. 1004.) In support, the minor submitted a report of the National Academy of Sciences questioning the reliability of identification through fingerprint comparisons. The trial court took the motion to exclude the evidence under advisement, and the expert testified concerning the method of analysis, as well as the application of that analysis to the fingerprint evidence in question. (Ibid.) The expert "acknowledged that fingerprint comparison is 'subjective,' that there is no established error rate, and that no studies suggest that the process is infallible." (Id. at p. 1005.) At the close of evidence, the court denied the motion to exclude the fingerprint evidence and relied on it to find the minor had committed the alleged burglary. (Ibid.) On appeal, the minor renewed the contention that the fingerprint evidence should have been excluded. In rejecting the contention, the O.D. court reviewed Kelly and its progeny and the admissibility of fingerprint evidence. "In Kelly, the California Supreme Court adopted the rule of Frye v. U.S. (D.C. Cir. 1923) 54 App.D.C. 46 293 F. 1013 governing the admissibility of expert testimony that relies on 'a new scientific technique.' (Kelly, supra, 17 Cal.3d at p. 30.) When a party seeks to introduce evidence relying on a new scientific technique, Kelly requires the party to show 'general acceptance of the new technique in the relevant scientific community' as well as the witness's qualification as an expert and use of 'the correct scientific procedures' in employing the technique. (Kelly, at p. 30.)" (O.D., supra, 221 Cal.App.4th at p. 1006.) In O.D., the fingerprint analysts used the ACE-V method (analysis, comparison, evaluation, verification). (O.D., supra, 221 Cal.App.4th at p. 1004.) The O.D. court found that "the Kelly rule is inapplicable to the ACE-V method of fingerprint comparison because, regardless whether it is generally accepted, fingerprint comparison is not the type of scientific technique Kelly governs since it can easily be understood by nonexperts and is unlikely to convey a misleading aura of certainty. " (Id. at p. 1007.) "Our Supreme Court, in People v. Venegas (1998) 18 Cal.4th 47 74 Cal. Rptr. 2d 262, 954 P.2d 525, expressly distinguished DNA evidence, which is subject to Kelly, from 'fingerprint, shoe track, bite mark, or ballistic comparisons, which laypersons essentially can see for themselves.' (People v. Venegas, supra, 18 Cal.4th at pp. 80-81, italics added.)" (Ibid.) In O.D., the fingerprint expert "testified that the process of comparing prints is a 'visual' one, and the juvenile court was able to see the palm prints being compared and observe their similarities. In addition, there was no suggestion that the prints were tampered with or altered. " (O.D., supra, 221 Cal.App.4th at p. 1007.) Finally, the O.D. court wrote: "The fingerprint expert's testimony was particularly unlikely to convey a misleading aura of certainty because she openly acknowledged that fingerprint comparisons are inherently subjective and that no study establishes their infallibility. She also made clear that it was her opinion-- not an established scientific fact--that the palm print at the crime scene matched the minor's. 'When a witness gives her personal opinion on the stand--even if she qualifies as an expert--laypersons may temper their acceptance of her testimony with a healthy skepticism born of their knowledge that all human beings are fallible.' " (O.D., supra, 221 Cal.App.4th at p. 1007.)