59 Pages Posted: 30 Nov 2001
This Article, part of a symposium on the past, present and future of DNA profiling, examines the history of an earlier identification technology, fingerprinting. This Article shows that fingerprinting was accepted as legal evidence remarkably rapidly and with very limited scrutiny or scepticism. It investigates why fingerprinting received such a favorable reception in court, and why fingerprinting -- unlike nearly every other form of expert evidence -- never developed the common 'battles of the expert,' with conflicting, contradictory testimony offered by both sides. The Article also develops some significant parallels between the history of fingerprint evidence and the early use of DNA profiling evidence in court. Finally, the Article examines a very recent development with respect to fingerprinting: the rise, in the last two years, of challenges to its admissibility on the grounds that it is insufficiently reliable. (So far, none of these efforts to exclude fingerprint evidence has been successful.) The Article argues that the challenges that emerged with respect to DNA profiling turned out to provide a road map for attacking fingerprinting, and examines why judges have been so reluctant to recognize the problems and limits to fingerprinting evidence. More generally, the Article argues that whatever the formal standard governing the admissibility of expert evidence, scrutiny does not take place in a vacuum. What seems obvious, what is taken for granted and what is viewed as problematic all depend on cultural assumptions and shared beliefs that change over time in noticeable and dramatic ways. When forms of evidence comport with broader understandings of what is plausible, they may escape careful scrutiny as legal evidence. While commentators have often criticized the legal system for being too conservative in admitting novel forms of expert evidence, the problem may be the reverse: we may need to be at least as worried about quick acceptance of a new technique leading to its deep and permanent entrenchment. Similarly, while attacks on the spectacle of clashing expert witnesses are legion, this historical study of fingerprint evidence suggests that there may, in fact, be a useful and productive aspect to the battles of the expert.
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