IN THE CIRCUIT COURT

                                                             OF THE 17 th JUDICIAL CIRCUIT

                                                             IN AND FOR BROWARD COUNTY,

                                                             FLORIDA

                  

CASE NO: 99‑11535CF10A

JUDGE: STANTON S. KAPLAN

 

STATE OF FLORIDA,

                         Plaintiff,

 

V.

 

VICTOR REYES,

Defendant.

 

 

 

OPINION AND ORDER

ON DEFENDANT'S MOTION IN LIMINE

RE: LATENT FINGERPRINT ANALYSIS

 

 

 

THIS CAUSE having come on to be heard on Defendant's Motion in Limine Re: Fingerprint Analysis and the response thereto of the State of Florida filed November 27, 2001, and the Court having held a full Frye Hearing thereon, this Court finds as follows:

 

The defense has asked this Court to grant a motion in limine prohibiting the admission of fingerprint evidence in this case. The motion is based upon the premise that the digital enhancement of the latent print captured on negative print film in this case constitutes a new and unverified science that does not meet Frye Standards. The Defendant asserts that digital enhancement of the fingerprint process utilized in this case is untested and its reliability has not been established.

 

The digital enhancement of the fingerprint in this case was accomplished by use of the PC Pros MORE 14ITS program which incorporates and uses the ADOBE PHOTO SHOP software. The Defendant called only one expert witness, Debra Myers, an expert in the use of ADOBE PHOTO SHOP to discredit the use of digital enhancement process.

 

(1)        To demonstrate that the use of digital imaging to enhance a latent print is not new

or novel and that it is accepted within the relevant forensic community, the State

presented the testimony of three expert witnesses, i.e., Mr. Erik Berg, Mr. David

Witzke, and Mr. David Knoerlein.

 

 

(2)        Mr. Berg, developer of the PC Pros MORE HITS program, testified that while

digital enhancement of fingerprints is a relatively new procedure, it has received widespread acceptance in the forensic scientific community in its application to enhancement of fingerprints.. Digital enhancement of video tapes and photographs has been in use and used in courts for more than a decade.

More specifically, the International Association for Identification (IAI) passed Resolution 97‑9, which states:

... the International Association for Identification recognizes that electronic digital imaging is a scientifically valid and proven technology for recording, enhancing, and printing images and like conventional silver‑halide based photography, it is accepted by professional commercial photographers, law enforcement photographers, and the identification community.

This has offered legitimacy to the technology and has encouraged its adoption among the members of the [Al. Since that time, digital imaging technology has spread to nearly every major law enforcement agency in the United States.

 

(3)        This Court also heard testimony from Mr. Witzke, a sales executive for PC Pros

MORE HITS, who is considered to be an expert in forensic digital imaging, and is

internationally renowned for his training programs in forensic image processing. In

his testimony, Mr. Witzke described the standard image enhancement processes

and procedures that are taught and followed throughout the United States, Canada

and England.

 

Mr. Witzke also testified that he had trained and had cause to review the proficiency of the person who performed the procedures used in this digital enhancement process, Mr. Knoerlein.

 

Mr. Knoerlein testified that he is a forensic analyst with more than 18 years of experience, and is well trained and proficient in the use of the digital image enhancement system, and that he has more than five years of experience in digital imaging. During that time, he has enhanced more than 10,000 images, most of which are latent prints.

 

(4)        Mr. Knoerlein testified that the procedures used by the Broward County Sheriff's

Office in no way changes the basic fingerprint image, but only makes the image

clearer. He further testified that he follows the standard operating procedures and

guidelines established by the Broward County Sheriffs Office for digital image

processing. All enhancements are performed on exact copies of the original image,

and that during the enhancement process no areas of an image are deleted or

altered in any way. All enhancement processes are accomplished by adjusting the

values of each pixel that make up the total image. Each of these processes are

recorded for purposes of authenticating the image enhancement process.

Mr. Knoerlein further testified that these procedures follow the Scientific Working Group on Imaging Technologies' (SWGIT) recommendations and guidelines for the use of digital image processing in the criminal justice system. The stated purpose of the SWGIT guidelines is to ensure the successful introduction of forensic imagery as evidence in a court of law.

 

(5)         Both Messrs Witzke and Knoerlein demonstrated to the satisfaction of this Court

that the enhancement procedure does not change the basic image. This Court

concurs with the reasoning stated by the Washington Court of Appeals in State of

Washington v Hayden, 950 Pa2d 1024 (Court of Appeals 1998) that digital

enhancement methodology does not involve new scientific principals and should

not require a Frye Hearing, but nevertheless the methodology does satisfy the Frye

requirements. Two Florida appellate decisions dealing with digital enhancement of

video tapes support this position that digital imaging enhancement is not new

scientific and untested evidence, ie: State of Florida versus Veleka Bryant, a First

District case cited at 810 So.2d 532 (Fla. v DCA 2002); and State of Florida

versus Roger Dolan, a Fourth District case cited at 743 So.2d 544, 546 (Fla. 4th

DCA 1999). In a recent first degree murder case in this Circuit, the Court

allowed similar digital enhancement of fingerprint evidence performed with the

same procedure by the same expert ie: David Knoerlein, admitted ie: State of

Florida versus Lucious Boyd, Case No. 99‑5809CF10A, Circuit Court 171h

Judicial Circuit, Broward County, Florida.

 

 

 

(6)        Mr. Witzke testified and demonstrated for this Court that the PC Pros MORE

HITS image enhancement process is simply an automation process that is intended

to improve the visual appearance of a duplicate of an original image. He

demonstrated in this Court that neither the scanning nor the image enhancement

process alters the physical appearance or the contents of the original image

captured from the negative.

Furthermore, the fundamental, principal requirements for admitting a photograph

into evidence ‑ whether it is digital or film‑based ‑ are relevance and

authentication. Mr. Knoerlein testified that the digital photograph was an accurate

representation of the image captured on the negative, and Mr. Witzke

demonstrated for this Court that the MORE HITS program could successfully

authenticate the image.

 

(7)        In State v Bryant, the Appellate Court upheld the trial court's finding that the

original time lapse videotapes were authentic based upon testimony by the State's

expert about the nature of the original time‑lapse videotape and the enhancements

made to a duplicate of the original, time‑lapse videotapes. The court went on to

define a duplicate as:

 

A counterpart produced by the same impression as the original ... by means of photography, including enlargements and miniatures; by mechanical or electronic rerecording, by chemical reproduction; or by equivalent technique that accurately reproduces the original FS 90.951 (3) ...

 

 

 

 

 

 

 

In United States v. Beeler, 62 F Supp. 2d 136, 148 (D. Me. 1999), the Court found that "Rerecordings that are enhanced so that the images are clearer to depict [sic] are also 'duplicates' so long as the tapes accurately reproduce the original images on the tape."

 

 

(8)           The enhancement of the latent image in this case was not extensive and this Court is satisfied that at least two experienced latent fingerprint comparison experts, Messrs Robert Holbrook and James DelValle, have stated in their opinions that a positive identification was made of both the enhanced digital fingerprint image as well as the original digital image with that of the Defendant's rolled print. Their opinions were contradicted in part by the testimony of two other latent fingerprint examiners, namely Ms. Rena Barry and Ms. Eva Souder, neither of whom claimed that it was a wrong identification, but only that they could not make the identification themselves.

 

Further, this Court recognizes that fingerprint comparison is a technical field that is subject to the experience and proficiency of the examiner, and in any event that the testimony of Ms. Barry and Ms. Souder goes only to the weight to be given the testimony of Mr. Holbrook and Mr. DelValle.

 

Therefore, this Court finds that all four of the above named latent print examiners are qualified to give their opinions.

 

(9)           This Court heard testimony that the process of digital enhancement of fingerprints used in this case, i.e., the "MORE HITS software program" is currently being used by the Federal Bureau of Federal Bureau of Investigation (FBI), US Department of Justice Drug Enforcement Agency (DEA), US Department of Treasury Inspector General for Tax Administration (TIGTA) (Formerly the IRS), US Postal Inspection Services United States Air Force Office of Special Investigations (USAF OSI), United States Army Crime Lab, United States Customs, the United States Secret Service as well as more than 150 different state and municipal law enforcement agencies throughout the United States, and it is also being used in Canada and England. This Court finds that the process of digital imaging enhancement of fingerprints is widely used and accepted as reliable in the forensic community.

 

(10)                  This Court finds that the testimony of Simon H. Cole, PhD., would not be helpful to the jury in this case and would only tend to confuse the jury. Dr. Cole's testimony can be summarized as his opinion based on his unspecified readings and unsubstantiated studies that the current methodology used in making fingerprint comparisons is unreliable, subject to error, and has not been scientifically tested.

 

 

 

 

 

 

This Court takes note that Dr. Cole has no personal experience or training in fingerprint comparison methodology. This Court draws the comparison that his testimony would be similar to expert testimony as to the unreliability of eyewitness testimony which has been disallowed. This Court rules at this time that Dr. Cole's testimony is not admissible without prejudice to renew the proffer at trial.

 

(11)         Notwithstanding the attack on fingerprint evidence in general by the defense, this Court finds that there is no reason to depart from the accepted law in Florida and in all other States and Federal Courts in the United States of allowing into evidence the opinion of duly qualified experts as to the identification of a latent fingerprint with that of a known rolled fingerprint.

 

(12)         This Court finds that Automated Fingerprint Identification Systems (AFIS), which is based on digital imaging technologies, have been used successfully throughout the United States and Canada to digitally record, enhance, store and manage fingerprints for more than 30 years.

 

(13)         This Court finds that there are specific rules and standards that govern the use of digital images for fingerprints, including but not limited to the minimum accepted resolution of digital images. These standards are published as the FBI's guidelines regarding digital image quality standards, and have been accepted within the fingerprint community for more than two decades.

 

 

 

ACCORDINGLY, it is hereby,

 

ORDERED AND ADJUDGED that the said Defense Motion in Limine is denied.

 

DONE AND ORDERED in chambers in Broward County, Fort Lauderdale this 21 day

of    October                                2002.                                                                             

 

 

 

 

 

STANTON S. KAPLAN

                                     

STANTON S. KAPLAN

CIRCUIT COURT JUDGE

 

cc:        Thomas F. Kern, A.S.A.                                          A TRUE COPY

            Barbara A. Heyer, Esq.