United States of America v. Myshawn Bonds

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

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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 permited 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 excludNo.

18-2670 3

ing 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

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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

should separately document any additional data used during

their comparison and evaluation.

(2) Contextual bias. Work by academic scholars has shown

that examiners’ judgments can be influenced by irrelevant

information about the facts of a case. Efforts should be made

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to ensure that examiners are not exposed to potentially biasing

information.

(3) Proficiency testing. Proficiency testing is essential for assessing

an examiner’s capability and performance in making

accurate judgments. As discussed elsewhere in this report,

proficiency testing needs to be improved by making it more

rigorous, by incorporating it within the flow of casework,

and by disclosing tests for evaluation by the scientific community.

From a scientific standpoint, validity as applied requires that an

expert: (1) has undergone appropriate proficiency testing to ensure

that he or she is capable of analyzing the full range of latent

fingerprints encountered in casework and reports the results of

the proficiency testing; (2) discloses whether he or she documented

the features in the latent print in writing before comparing

it to the known print; (3) provides a wrifen analysis explaining

the selection and comparison of the features; (4) discloses

whether, when performing the examination, he or she was aware

of any other facts of the case that might influence the conclusion;

and (5) verifies that the latent print in the case at hand is similar

in quality to the range of latent prints considered in the foundational

studies.

This summary provides the defense bar with paths to cross examine

witnesses who used the ACE-V approach. Have

they avoided confirmation bias? Have they avoided contextual

bias? Has their proficiency been confirmed by testing?

Cf. Florida v. Harris, 568 U.S. 237, 247–49 (2013). And the report’s

observation about the rate of false positives will inform

jurors that TV shows do not depict the actual state of

latent-fingerprint analysis. Bonds does not contest any restrictions

the district court placed on how these mafers were

explored on cross-examination; his sole appellate contention

is that the court erred by preventing reference to Mayfield.

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To say that an error rate is troubling is not to suggest that

ACE-V is too uncertain for use in litigation. Assessment

must be comparative. What are the alternatives? Grainy pictures

taken by bank surveillance cameras of robbers wearing

masks, or confederates who testify for the prosecution, have

problems of their own. Witnesses may lie on the stand; there

is no science of credibility enabling jurors to detect who is

telling the truth, and some witnesses who think that they are

telling the truth nonetheless may be confused or incorrect.

Eyewitness identification is notoriously subject to the vagaries

of memory. A judicial system that relies heavily on fallible

lay testimony cannot be improved by excluding professional

analysis that may well have a lower error rate—or by

diverting jurors’ afention to particular errors made by other

analysts years earlier. What the judicial system can do is subject

the forensic evidence to cross-examination about a

method’s reliability and whether the witness took appropriate

steps to reduce errors. Bonds enjoyed that opportunity.

AFFIRMED