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United States v. Bonds

United States Court of Appeals, Seventh Circuit

April 24, 2019

United States of America, Plaintiff-Appellee,
Myshawn Bonds, Defendant-Appellant.

          Argued April 16, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CR 573 - Sara L. Ellis, Judge.

          Before EASTERBROOK, KANNE, and SCUDDER, Circuit Judges.


         A jury convicted Myshawn Bonds of bank robbery, 18 U.S.C. §2113(a), and a judge sentenced him to sixty months' imprisonment plus three years' supervised release. The evidence against him included the testimony of Kira Glass, a fingerprint examiner in the FBI's Latent Print Operations Unit. Glass concluded that Bonds's fingerprints appeared on the demand notes used in the two robberies.

         In 2004 the Latent Print Operations Unit incorrectly identified Brandon Mayfield as a person whose fingerprints suggested involvement in a terrorist bombing in Spain. Mayfield was arrested and held for more than two weeks as a material witness, until the FBI acknowledged that its assessment resulted from operational errors. The United States released Mayfield, apologized, and paid him substantial compensation. Bonds wanted to use this episode to illustrate for the jury the potential for mistakes in the application of a method that fingerprint analysts dub ACE-V, for analysis, comparison, evaluation, and verification. That method miscarried for Mayfield, and Bonds contended that it could miscarry for him too.

         But the district judge concluded that evidence about Mayfield's arrest in 2004 would take the trial far afield from the question whether Bonds robbed two banks in 2015. The judge permitted Bonds to cross-examine Glass about the reliability of the ACE-V method and to present other evidence suggesting that the approach is more error-prone than jurors are likely to believe after watching forensic labs operate to perfection on television. Evidence about one particular error, the judge concluded, would be more distracting and time consuming than its incremental value could justify.

         Bonds contends that the district court's decision to exclude evidence about Mayfield's mistaken identification and arrest violated the Confrontation Clause of the Constitution's Sixth Amendment. United States v. Rivas, 831 F.3d 931 (7th Cir. 2016), rejected an identical contention, holding that a district court did not violate the Constitution when excluding evidence about the Mayfield situation. Bonds asks us to distinguish Rivas on the ground that Glass works in the same FBI division that mistakenly identified Mayfield, but Bonds does not contend that Glass was involved in that error. Guilt by association would be a poor reason to deny a district judge the discretion otherwise available under Fed.R.Evid. 403.

         Defense counsel suggested at oral argument that jurors respond more strongly to concrete examples than to data about error rates. That may well be true-but it is a reason to limit the use of extrinsic evidence, not to require judges to admit it. Presenting jurors with details of one wrongful imprisonment (especially on a mistaken charge of terrorism) would appeal to their emotion rather than to their reason. Emotional responses can be strong, but reason should underlie a verdict.

         Bonds had ample opportunity to supply the jury with evidence about the reliability of the ACE-V method, including the extent to which changes the FBI made in the last decade have improved its reliability. Shortly after the Mayfield fiasco the National Research Council concluded that the ACE-V method is too subjective and too unreliable to deserve the label "scientific." Strengthening Forensic Science in the United States: A Path Forward 136-45 (2009). More recently, the President's Council of Advisors on Science and Technology concluded that changes in ACE-V have bolstered its accuracy. Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods 87-103 (2016). This report concluded that the error rates shown by well-designed studies ranged from 1 in 18 to 1 in 604. (These are rates of false positives-incorrectly declaring a match when the prints differ-taking account of statistical confidence intervals.) The bottom line (id. at 101-02; emphasis in original):

Foundational validity. Based largely on two recent appropriately designed ... studies, [we find] that latent fingerprint analysis is a foundationally valid subjective methodology-albeit with a false positive rate that is substantial and is likely to be higher than expected by many jurors based on longstanding claims about the infallibility of fingerprint analysis.
Conclusions of a proposed identification may be scientifically valid, provided that they are accompanied by accurate information about limitations on the reliability of the conclusion- specifically, that (1) only two properly designed studies of the foundational validity and accuracy of latent fingerprint analysis have been conducted, (2) these studies found false positive rates that could be as high as 1 error in 306 cases in one study and 1 error in 18 cases in the other, and (3) because the examiners were aware they were being tested, the actual false positive rate in casework may be higher. At present, claims of higher accuracy are not warranted or scientifically justified. Additional... studies are needed to clarify the reliability of the method.
Validity as applied. Although we conclude that the method is foundationally valid, there are a number of important issues related to its validity as applied.
(1) Confirmation bias. Work by FBI scientists has shown that examiners typically alter the features that they initially mark in a latent print based on comparison with an apparently matching exemplar. Such circular reasoning introduces a serious risk of confirmation bias. Examiners should be required to complete and document their analysis of a latent fingerprint before looking at any known fingerprint and ...

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