The trial court did not err by failing to conduct a Kelly hearing on the reliability of fingerprint evidence.
Defendant argued the trial court erred when it admitted fingerprint evidence connecting him to the crimes because the scientific community has rejected the reliability of fingerprint evidence. However, fingerprint evidence is not subject to a Kelly type foundational hearing because it’s not a novel scientific technique and does not have a misleading aura of certainty. And fingerprint evidence, in general is not so unreliable that it should be excluded.
People v. Rivas 238 Cal.App.4th 967 (2015)
We approach defendant Valadez’s contention that fingerprint evidence must be excluded as unreliable with two separate, but complementary, lines of reasoning. First, we conclude, as did Division Four of the First Appellate District in O.D.(Humes, J.), that expert fingerprint evidence is not subject to a foundational hearing under Kelly, supra, 17 Cal.3d 24, because fingerprint 976*976 evidence is not a novel scientific technique and does not have a misleading aura of certainty. And second, we conclude, as did the Seventh Circuit Court of Appeals (Posner, J.) in U.S. v. Herrera (7th Cir. 2013) 704 F.3d 480 (Herrera), that fingerprint evidence, in general, is not so unreliable that it must be excluded.
In his briefing on appeal, defendant Valadez avoids discussion of Kelly; instead, he asserts, generally, that fingerprint evidence is so unreliable that it does not meet the threshold of admissibility. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769-772 [149 Cal.Rptr.3d 614, 288 P.3d 1237] [trial courts play vital gatekeeping role to insure reliability of underlying conceptual or methodological basis of expert testimony].) We conclude that fingerprint evidenceis sufficiently reliable to be admissible, as was found by the Seventh Circuit Court of Appeals in Herrera. We quote the Herrera decision at length in this regard because we find it persuasive:
“The … issue relating to the fingerprint evidence is whether [the fingerprints found on the evidence] were the defendant’s. They were latent rather than patent fingerprints. Patent fingerprints are made by pressing a fingertip covered with ink on a white card or similar white surface, and are visible.[] Latent fingerprints are prints, usually invisible, left on a smooth surface when a person touches it with a finger or fingers. Laboratory 979*979 techniques are employed to make a latent fingerprint visible so that it can be compared with other fingerprints. The latent prints on the [evidence] in this case were found by a fingerprint examiner to match the defendant’s patent prints made in the course of the criminal investigation, and the government therefore offered the match as evidence of the defendant’s participation in the [crimes]. The defendant argues that methods of matching latent prints with other latent prints or with patent prints have not been shown to be reliable enough to be admissible as evidence under the standard for reliability set forth in [federal rules and decisions].” (Herrera, supra, 704 F.3d at pp. 483-484.)
(5) “The [ACE-V] methodology requires recognizing and categorizing scores of distinctive features in the prints [citations], and it is the distinctiveness of these features, rather than the ACE-V method itself, that enables expert fingerprint examiners to match fingerprints with a high degree of confidence. That’s not to say that fingerprint matching (especially when it involves latent fingerprints, as in this case) is as reliable as DNA evidence, for example. Forensic DNA analysis involves comparing a strand of DNA (the genetic code) from the suspect with a strand of DNA found at the crime scene. The comparison is done with scientific instruments and determines whether the segments are chemically identical. Errors are vanishingly rare provided that the strands of code are reasonably intact.” (Herrera, supra, 704 F.3d at p. 485.)