Fingerprints and Miscarriages of Justice: 'Other' Types of Error and a Post-Conviction Right to Database Searching

59 Pages Posted: 5 Jul 2018 Last revised: 6 Aug 2018

See all articles by Simon A. Cole

Simon A. Cole

University of California, Irvine - Department of Criminology, Law and Society

Barry Scheck

Professor of Law, Cardozo Law School, Co Founder Innocence Project, Partner, Neufeld Scheck & Brustin

Date Written: July 5, 2018

Abstract

Much of what has been written about the role of friction ridge (“fingerprint”) evidence and miscarriages of justice has focused, understandably, on erroneous identifications, cases in which a crime scene print is erroneously attributed to a suspect (or, more rarely, a victim). This Article undertakes a systematic and comprehensive examination of “other” types of error in friction ridge analysis and how they can, and have, contributed to miscarriages of justice. These errors include “missed identifications” and well as “missed exclusions.” The Article begins by systematically laying out a new typology of fingerprint errors, resulting in more than 15 different error types. It then discusses each of the major error types, listing publicly exposed errors of that type if there are any, for a total of more than 40 cases. We illustrate how each error type can deprive a defendant of evidence probative of innocence. The Article then goes on to discuss the scientific literature on friction ridge analysis and the ways in which that literature suggests that these “other” errors may be common, and perhaps even expected, given standard procedures in friction ridge analysis. The final section of the Article discusses the issue of post-conviction database searching of fingerprint (and other forensic) databases, akin to post-conviction searching of DNA databases. We find that convicts’ have a right to post-conviction database searching for forensic evidence other than DNA in only a few states. And yet, post-conviction database searches have exonerated convicts in those states. We argue that there is no persuasive reason that the right to post-conviction DNA testing should not be extended to post-conviction fingerprint (and other forensic) databases searching.

Keywords: fingerprint, error, miscarriage of justice, wrongful conviction, database, AFIS, post-conviction

Suggested Citation

Cole, Simon A. and Scheck, Barry, Fingerprints and Miscarriages of Justice: 'Other' Types of Error and a Post-Conviction Right to Database Searching (July 5, 2018). Albany Law Review, Vol. 81, No. 3, 2017/2018; UC Irvine School of Law Research Paper No. 2018-52; Cardozo Legal Studies Research Paper No. 546. Available at SSRN: https://ssrn.com/abstract=3208975

Simon A. Cole (Contact Author)

University of California, Irvine - Department of Criminology, Law and Society ( email )

2340 Social Ecology 2, RM
Irvine, CA 92697
949-824-1443 (Phone)
949-824-3001 (Fax)

HOME PAGE: http://www.seweb.uci.edu/faculty/cole/

Barry Scheck

Professor of Law, Cardozo Law School, Co Founder Innocence Project, Partner, Neufeld Scheck & Brustin ( email )

40 Worth Street
New York, NY 10013
United States
212-364-5390 (Phone)

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