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The Associated Press

PHILADELPHIA (AP) - Ninety-one years after fingerprint evidence was first presented in an American courtroom, its reputation as an infallible forensic tool is under attack in a court challenge that could change how criminal cases are tried.

On Monday, federal prosecutors hoped to persuade U.S. District Judge Louis H. Pollak to reverse his recent decision barring experts from testifying about whether a fingerprint taken from a crime scene matches a defendant. If the judge doesn't change his mind, the decision could change the way forensic evidence is gathered and presented in court.

While prosecutors and some forensic experts say Pollak's ruling could have grave consequences, critics of fingerprint analysis say it's about time the process was reviewed.

"There are a lot of emperors out there testifying who have no clothes," said David L. Faigman of University of California's Hastings College of Law. "Where's the science behind it? Where's the data?"

The ruling, believed to be the first of its kind, involves a death penalty case in which three men are charged with operating a multimillion-dollar drug ring and are linked to four killings.

Lawyers for Carlos Llera-Plaza, Wilfredo Acosta and Victor Rodriguez asked the judge to bar fingerprint evidence. Under Pollak's ruling, experts can testify about and show illustrations of similarities or dissimilarities between "latent" fingerprints from a crime scene and "rolled" fingerprints on file, but they cannot testify that crime scene prints match a defendant's fingerprints.

Citing a 1993 U.S. Supreme Court decision requiring judges to take a more active role in deciding what scientific evidence to admit, Pollak said that, unlike DNA evidence, fingerprint evidence has not been scientifically tested, its error rate has not been calculated, and there are no standards for what constitutes a match.

Prosecutors declined to comment on the case, citing the upcoming hearing, but said in court documents that Pollak's opinion, if left to stand, "would have grave consequences."

"It would deprive the government of vital evidence in this case, in which latent fingerprints directly link defendants to heinous murders," court documents stated. "If carried to its logical conclusion, the court's reasoning would virtually eliminate any expert opinion on the myriad subjects on which subjective expert opinion has always been welcomed in the federal courts."

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Since the first conviction in the United States on fingerprint evidence in 1911, the fingerprint classification system used in much of the world has changed little.

A person's fingerprint is classified by its arches, loops and whorls, then compared to latent fingerprints by design type and by locating certain fixed points and counting the ridges between the points.

"The courts have recognized the validity and merit for fingerprint identification for 100 years," said Joseph P. Polski, chief operations officer of the International Association for Identification, an industry group. "If fingerprint identification was prohibited from being admitted in court, it would have far reaching effects in identifying bad guys."

Although DNA evidence has become a highly prized evidentiary tool, fingerprints can help track down criminals in ways DNA can't - in part because hundreds of millions of fingerprints are on file, Polski said.

If Pollak's decision stands, Faigman said it likely would lead to scientific testing and advances in fingerprint analysis technology that could erase the judge's concerns that fingerprints rely too much on subjective analysis and not enough on hard science.

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Though Pollak's decision only applies to cases tried in the 3rd U.S. Circuit Court of Appeals, legal experts say it has opened the door for other courts to address the issue. The 3rd Circuit hears appeals from federal courts in Pennsylvania, New Jersey, Delaware and the Virgin Islands.

"In very short order, fingerprinting will receive substantive research and will come through this challenge - maybe modified - and we could end up with a much better technology," Faigman said.

He believes the government is fighting Pollak's ruling not because fingerprints can't pass scientific muster, but because of concerns that the case may lead to scrutiny of other forensic tools - including bite-mark and handwriting analysis, which Faigman called "voodoo."

"They're afraid they'll win the fingerprint battle but lose the forensic science war," he said.

Copyright 2002 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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