2007-300, STATE OF NH v. RICHARD LANGILL

Kelly A. Ayotte

No. 2007-300

Rockingham

decision of the Superior Court (Coffey DUGGAN, J. Pursuant to RSA 606:10 (2001), the State appeals the

Samdperil & Welsh, PLLC

her bedroom bureau and approximately five dollars in coins from a bottle. On complainant informed the police that someone had stolen $1,200 from a safe in the police responded to a report of a burglary at an apartment in Derry. The The record supports the following relevant facts. On March 25, 2004,

We reverse and remand. concerning the identification of a fingerprint of the defendant, Richard Langill.

THE SUPREME COURT OF NEW HAMPSHIRE and orally), for the defendant.

on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as to a person using only level one detail, but can exclude a person at this level. p. 2 determine which end is up or down. An examiner cannot individualize a print examiner may also use level one detail to orient a latent print; that is, to (triangular shaped areas where fields of ridges have grown in together). An Level one detail also includes focal areas of a print, such as delta regions sixty percent have a loop pattern, and thirty-five percent have a whorl pattern. arch, loop, and whorl. Five percent of all fingerprints have an arch pattern, detail. Level one detail, called ridge flow, consists of three basic patterns: Fingerprints are categorized into three levels of increasing friction ridge

generally exhibiting greater distortions than inked prints. an object. The quality and clarity of latent prints varies, with latent prints reproduction of friction ridge skin that is left behind when a fingertip touches birth of the individual to whom the prints belong. A latent print is a chance The prints are stored on a ten print card that also lists the name and date of by the controlled application of black ink to the fingers’ friction ridge surfaces. individual. A known impression or inked print is obtained from an individual friction ridge skin forms during gestation, it is permanent and unique to each Fingerprints are comprised of patterns of friction ridge skin. Because the 2

The trial court held a two-day Daubert

fingerprint identification and ACE-V methodology. (Rule 702), Baker Valley Lumber v. Ingersoll-Rand hearing, Corson provided the following background information concerning unreliable under RSA 516:29-a (2007), New Hampshire Rule of Evidence 702 Steven Ostrowski, a level two criminalist with the NHSPFL. During the methodology used by the NHSPFL, called ACE-V methodology, is generally James Starrs, an expert in the scientific status of fingerprint comparison, and evidence on behalf of the State, while the defendant offered the testimony of was not qualified to testify as a fingerprint expert; (2) the fingerprint identifying the latent fingerprint as belonging to him. He argued: (1) Corson Corson’s fingerprint testimony. Corson testified as an expert in fingerprint Before trial, the defendant moved to exclude Corson’s testimony hearing on the admissibility of

would be unfairly prejudicial under New Hampshire Rule of Evidence 403. methodology reliably to his case; and (4) admission of the fingerprint evidence ACE-V methodology is generally reliable, Corson did not apply that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); (3) even if

In May 2005, the defendant was indicted for burglary. See RSA 635:1 (2007). identified the latent impression from the bureau as the defendant’s fingerprint. 2005, Lisa Corson, a level one criminalist in the fingerprint unit of the lab, Department of Safety State Police Forensic Laboratory (NHSPFL). In February and right side of the safe. They forwarded the prints to the New Hampshire April 1, 2004, the police lifted latent prints from the bureau, bottle, and the top determine that the latent print and the known impression are from the same p. 3 analysis and comparison of the friction ridge details. The examiner may During this stage, the examiner formulates a conclusion based upon the

e.g. prints, the examiner determines whether such discrepancies are explainable, agree between both prints. If the examiner identifies discrepancies between the whether, based upon similarity, sequence and spatial relationship, the details prints next to each other, and observes the friction ridge detail to determine During the comparison phase, the examiner places the latent and known

e.g. When these details are not consistent between both the latent and the known, print and separately identifies its level one, level two, and level three details. 3 methodology to examine fingerprints. See procedures. Pursuant to the SWGFAST guidelines, NHSPFL uses the ACE-V impression. If the latent print is sufficient, the examiner obtains the inked NHSPFL has incorporated these guidelines into its standard operating latent print is not sufficient, the examiner does not analyze a known quantity of detail is present to match the latent print to an individual. If the Technology (SWGFAST) establishes guidelines for fingerprint analysis. The The Scientific Working Group on Friction Ridge Analysis, Study and comparison to a known print; that is, whether sufficient quality (clarity) and three details of the latent print to determine whether it is suitable for examiner identifies, in order, the level one, level two, and, if possible, level next step – evaluation. to scrutinize first the latent print, and then the known impression. The is excluded and the process stops. Otherwise, the examiner continues to the The first step in ACE-V methodology – analysis – requires the examiner the print. When the discrepancies are not explainable, the known impression , whether a particular distortion in the latent print is consistent throughout

step two of the method – comparison. If, however, the details are consistent between the prints, the examiner begins whorl patterns, the examiner excludes the known print and stops the analysis. , if the latent print has whorl patterns, and the known impression has no

the shape, edge, and width of the ridge itself. detail observes tiny features or ridge attributes, such as pores on a ridge, and an examiner can individualize a print to a person at this level. Level three the print. Because level two details are unique and permanent to each finger, characteristics and their locations in relation to other identifiable features of 937 A.2d 928, 929-30 (2007). create dots. They also include observations of the directions of these State v. Connor, 156 N.H. ___, ___, characteristics of ridge paths, such as places where ridges end, bifucate, or Level two details, commonly referred to as Galton points, focus upon draft proposal recommending blind verification for all single latent print cases. p. 4 verifying single latent prints, and that SWGFAST had recently submitted a however, that the Federal Bureau of Investigation (FBI) may begin blindly SWGFAST, currently requires blind verification. Ostrowski acknowledged, eliminates erroneous identifications, and no oversight organization, such as greater quality assurance, no studies demonstrate that it diminishes or assurance measure. He testified that, while blind verification may provide not a necessary component of the scientific process, and is instead a quality Ostrowski disputed this assertion, explaining that blind verification is

latent print cases would reduce human errors and misidentifications. identification unreliable. Starrs further opined that blind verification in single bench notes. He opined that Corson’s failure to take such notes renders her Corson was required to memorialize her observations in contemporaneous Procedures, which apply to every forensic science laboratory in the NHSPFL, Starrs testified that, pursuant to NHSPFL’s Standard Operating

At the Daubert

years experience and the person in charge of the fingerprint unit. her conclusion was verified by Timothy Jackson, a criminalist with twenty may observe the features from the photograph. Finally, Corson explained that that written notes are unnecessary because an independent qualified examiner photographed the print to document the presence of details. Corson testified examiner knows that another examiner already made a positive identification. examiner repeats the process, the verification is not blind because the second when an examiner makes a positive identification. Thus, when the second conclusion. Under the SWGFAST guidelines, verification is mandatory only own analysis, comparison, and evaluation to arrive at his or her own independently verifies the first examiner’s conclusion by conducting his or her The final step is verification, where another qualified examiner

memorialize these observations in contemporaneous bench notes, she from the defendant’s finger. Corson testified that, while she did not she compared the two prints to reach her conclusion that the latent print came characteristics of the latent and known prints, and demonstrated precisely how an enlarged picture, she further described specific level two and level three that it had sufficient quality and quantity of detail for individualization. Using print. She identified the latent print as having an arch pattern and determined She testified that she examined the latent print before looking at the known methodology to analyzing the latent print lifted from the complainant’s bureau.

that the results are inconclusive. source (individualization or identification) or different sources (exclusion), or contended that Corson’s documentation is consistent with all relevant p. 5 methodology to have been reliably applied to this case. Specifically, the State contemporaneous notes nor blind verification are necessary for the ACE-V

The State moved for reconsideration, arguing that neither

case.” court to find that the ACE-V principles were reliably applied to the facts in this verification procedure for single latent prints, there is insufficient basis for the not document her analysis, and that [NHSPFL] does not employ a blind Specifically, the trial court reasoned: “[I]n light of the fact that Ms. Corson did as a result of incomplete documentation and possibly biased verification.” Verification) methodology to the single latent print in this case was unreliable because “her application of the ACE-V (Analysis, Comparison, Evaluation, and latent fingerprints. However, the trial court excluded Corson’s testimony and concluded that ACE-V is generally a reliable methodology for analyzing reaffirmed that Corson was qualified to provide expert fingerprint testimony, In its ruling on the defendant’s motion to exclude, the trial court

of the ACE-V methodology. 5 when verifying an individualization, and that such notes are not a component protocols do not require an examiner to take contemporaneous bench notes testifying to an individualization. Finally, Ostrowski testified that NHSPFL’s Instead, he would need to independently examine the images himself before never testify to an identification based upon that examiner’s bench notes. no longer available to testify at a criminal trial, Ostrowki testified that he would Additionally, if the initial examiner who individualized a latent print was

having previously read the notes. latent print because he would want to avoid any bias that would arise from notes, he would always redo the analysis, comparison, and evaluation of the process. Ostrowski testified that, even if he had the initial examiner’s bench they would not allow another individual to observe the examiner’s reasoning her analysis or might save that examiner’s work for his or her future reference, while contemporaneous bench notes might assist an examiner during his or another examiner would use that to come to their [sic] own conclusion.” Thus, come to the conclusion of individualization or not . . . to the point where way to thoroughly document the mental process that one would go through to came to fruition later on.” Ostrowski explained that “[t]here . . . [is] no suitable means of seeing where that examiner went wrong if an erroneous identification taking would not further support the identification,” although it “would be a the latent impression” and has already been collected, “[a]ny kind of note constantly changing.” Because “[t]he data, in a fingerprint case, is the image of that scientists take notes while they are collecting their data on “things that are require[s] contemporaneous note taking of the mental process.” He explained Ostrowski further testified that “no part of the scientific process . . . p. 6 Relying upon State v. Dahood

erred in finding the application unreliable.” Corson’s implementation of the ACE-V methodology in this case, the court that, “even if RSA 516:29-a, I(c) required the trial court to evaluate Ms. methodology in reaching her conclusion.” Alternatively, the State maintains detailed assessment of whether Ms. Corson properly followed the ACE-V the trial court “misconstrued the focus of RSA 516:29-a, I(c)” by “requir[ing] a the credibility of the expert’s testimony.” Specifically, the State contends that th[e] scientific community, and undert[aking] the jury’s function of weighing admissibility, impos[ing] standards of reliability beyond those established by its discretion by “exceed[ing] its role of making a threshold determination of On appeal, the State argues that the trial court unsustainably exercised

or to determine a fact in issue, a witness qualified as will assist the trier of fact to understand the evidence If scientific, technical, or other specialized knowledge

149 N.H. 243, 251 (2003). Rule 702 states: under Rule 702 for an unsustainable exercise of discretion. State v. Pelletier, We generally review a trial court’s determination of expert reliability

a blind verification process for single latent print cases, Corson’s testimony was did not make reliable the initial examiner’s conclusions.” case, either in the form of contemporaneous bench notes or implementation of because the verification process, indicated only by another examiner’s initials, evidence indicating that Corson reliably applied the ACE-V methodology to this because Corson’s “‘case notes’ did not detail her process or findings, and 516:29-a, I(c), the trial court reaffirmed that in the absence of additional demonstrate that Corson applied the ACE-V methodology reliably in this case The trial court denied the State’s motion for reconsideration. Citing RSA administered in each specific instance.” He argues that the State failed to are reliable; the State must also put forth evidence that the test is properly counters that “[u]nder [Rule] 702, it is not enough that the scientific principles

proven to eliminate or reduce misidentifications. process of the ACE-V methodology, and that blind verification has not been verification is a quality assurance measure that is not part of the scientific is doing across the country.” Additionally, the State maintained that blind documentation “is consistent with what the rest of the fingerprint community the latent print with a shorthand “horseshoe shaped marking”; and this standards and criteria; Corson did take contemporaneous notes by marking statute “codifies the Daubert p. 7 scope of RSA 516:29-a, I(c). Specifically, the State asserts that section I of this Corson’s testimony. The State contends that the trial court misconstrued the The trial court relied upon subsection (c) of RSA 516:29-a, I, in excluding

testimony.

consider other factors specific to the proffered

(b) In making its findings, the court may appropriate scientific literature. (4) Are generally accepted in the

expert’s opinions were supported by theories or

appropriate to the circumstances, whether the

testimony, the court shall consider, if

II. (a) In evaluating the basis for proffered expert methods reliably to the facts of the case. (c) The witness has applied the principles and

the trial court to “determin[ing] whether the science underlying the expert’s 592-93. It submits that RSA 516:29-a, I(c) is properly interpreted as limiting methodology can be applied to the facts in issue.” See Daubert, 509 U.S. at methodology is scientifically valid and of whether that reasoning or 702, [requiring] a preliminary assessment of whether th[e] reasoning or

principles and methods; and Court’s description of the analysis under Rule (b) Such testimony is the product of reliable

admissible. Baker Valley Thus, expert testimony must rise to a threshold level of reliability to be facts or data;

In Baker Valley

education, may testify thereto in the form of an

516:29-a, which provides: after our decision in Dahood, 148 N.H. at 723, the legislature enacted RSA reliability of expert testimony to Rule 702. Id. at 614. Subsequently, in 2004,

an expert by knowledge, skill, experience, training, or of reliable principles and methods, and (3) the witness

p. 8 sufficient facts or data, (2) the testimony is the product

opinion or otherwise, if (1) the testimony is based upon

education, may testify thereto in the form of an

an expert by knowledge, skill, experience, training, or

or to determine a fact in issue, a witness qualified as will assist the trier of fact to understand the evidence If scientific, technical, or other specialized knowledge 8

Daubert current version of Federal Rule of Evidence 702 (FRE 702). In response to As the State correctly notes, section I of RSA 516:29-a mirrors part of the

v. Joiner, 522 U.S. 136 (1997). FRE 702 provides: Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999); General Electric Co. version. Fed. R. Evid. 702 advisory committee’s note (amend. 2000); see also whole. Petition of State of N.H. (State v. Johanson) and its progeny, in 2000, Congress amended FRE 702 to its present legislative intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiters of the Section II of RSA 516:29-a unambiguously codifies the four Daubert methodology”). Therefore, we conduct a closer examination of section I(c). keeping role concerning the application of a scientific technique or (“in Daubert, the Supreme Court did not specifically address a judge’s gate- Method or Procedure in a Particular Case, 1998 U. Ill. L. Rev. 231, 236 (1998) Cf. Note, The Weight Versus Admissibility Dilemma: Daubert’s Applicability to a not clear that section I(c) also merely codifies principles outlined in Daubert. Daubert, 509 U.S. at 592-93. Contrary to the State’s assertion, however, it is reasoning or methodology underlying the testimony is scientifically valid,” codifies Daubert ’s requirement that the court preliminarily assess “whether the factors we applied in Baker Valley, 148 N.H. at 614, 616, and section I(b)

isolation. Bendetson v. Killarney, Inc., 154 N.H. 637, 641 (2006). interpret a statute in the context of the overall statutory scheme and not in language that the legislature did not see fit to include. Id. Further, we as written and will not consider what the legislature might have said or add meaning to the words used. Id. We interpret legislative intent from the statute When examining the language of the statute, we ascribe the plain and ordinary

conclusion.” whether Ms. Corson properly followed the ACE-V methodology in reaching her function” by construing RSA 516:29-a, I(c) “to require a detailed assessment of Thus, the State argues that the trial court “stepped beyond its gate-keeping applicable to an issue in th[e] case, and are of assistance to the fact-finder.” testimony is reliable in the abstract, and whether those principles are p. 9 As suggested, Daubert

significant enough to skew the methodology. incorrect. The judge should only exclude the evidence

enough to render it unreliable is likely to also be process which renders the expert’s conclusions

thinks that there is a flaw in the expert’s investigative misapplication of a methodology that is significant

analysis -- means that any

[A]fter Daubert grounds” for his or her conclusions. if the flaw is large enough that the expert lacks “good

In re Paoli

from that methodology. . . . Moreover, any should not exclude evidence simply because he or she judge’s admissibility determinations is that the judge Thus, . . . we think that the primary limitation on the

methodology as an original matter.” Id supported by good grounds for each step in the. at 745 n.14. It concluded: more likely to accept the altered methodology than if it was evaluating that from a methodology that the court thinks is clearly reliable, the court should be In that case, the Federal Court of Appeals for the Third Circuit explained: court finds that an expert has employed a methodology only slightly different

, 35 F.3d at 745-46. The Third Circuit noted, however, that “if a

methodology or merely misapplies that methodology. whether the step completely changes a reliable the expert’s testimony inadmissible. This is true a “basic” methodology and which constitute changes analysis unreliable under the Daubert factors renders

expert testify to scientific knowledge -- conclusions such a distinction, for Daubert ’s requirement that the

upon In re Paoli R.R. Yard PCB Litigation The third requirement for admissibility at issue here is based in large part ascertain which of an expert’s steps constitute parts of

facts of the case. To begin with, it is extremely elusive to attempt to between a methodology and its application is viable.

note (amend. 2000). cert. denied, 513 U.S. 1190 (1995). See Fed. R. Evid. 702 advisory committee’s

has applied the principles and methods reliably to the p. 10 Id itself.

negates the basis for the reliability of the principle

the basis for exclusion of the opinion only if that error

application of a reliable methodology should provide

should warrant exclusion. An alleged error in the

error in the application of a particular methodology

RSA 516:29-a, I(c). RSA 516:29-a, I(c) requires a trial court to determine We find the Eighth Circuit’s approach instructive to our interpretation of

[T]his inquiry is of necessity a flexible one. Not every

.

the results unreliable.” p. 10 Id. (emphasis added). The Eighth Circuit emphasized: protocols, and if so, whether such error so infected the procedure as to make However, the court emphasized Daubert district court must determine whether the expert erred in applying the evidence challenges the application of the protocols in a particular case, the that he properly performed the protocols” at issue. Id. “If the opponent of the or methodology in question,” by “requir[ing] the testifying expert to . . . attest[] initial inquiry into the particular expert’s application of the scientific principle Accordingly, the Eighth Circuit concluded that a trial court “should make an shaky but admissible evidence.” Id. (quotation and brackets omitted). on the burdens of proof are the traditional and appropriate means of attacking cross-examination, presentation of contrary evidence, and careful instruction functions of judge and jury”; specifically, Daubert ’s notation that “vigorous

before finding the testimony admissible. p. 10 Id. the application of a reliable methodology or principle in the particular case” requiring a court to “conclude that the [scientific] testimony was derived from (1994) (quotation omitted). Thus, the Eighth Circuit understood Daubert approach: “[W]hen the application as Martinez The Federal Court of Appeals for the Eighth Circuit has adopted a similar, 3 F.3d 1191, 1197, 1198 (8th Cir. 1993), cert. denied, 510 U.S. 1062 all scientific testimony or evidence admitted is . . . reliable.” United States v. the abstract” because Daubert requires the trial court to “ensure that any and extend[ing] beyond simply the reliability of the principles and methodologies in Circuit interpreted “the reliability inquiry set forth in Daubert. . . [as] (quotations and brackets omitted). In adopting this approach, the Eighth methodology itself.” United States v. Gipson, 383 F.3d 689, 697 (8th Cir. 2004) methodology was so altered by a deficient application as to skew the reliable, outright exclusion of the evidence in question is warranted only if the unreliable under Daubert and the methodology itself is otherwise sufficiently

Corp., 303 F.3d 256, 267 (2d Cir. 2002) (applying Third Circuit’s approach). p. 10 Id. at 746 (emphasis added); see also Amorgianos v. Nat’l Railroad Passenger results unreliable.” Martinez p. 11 requiring the flaws in application to “so infect[] the procedure as to make the The Eighth Circuit’s approach sufficiently addresses these concerns by

not rise to th[e] level” of so altering the methodology as to make the test 374 F. Supp. 2d 51, 68 (D.D.C. 2005) (“If actual or potential human errors do the weight and credibility of the expert’s conclusions. United States v. Morrow, process is available to highlight the errors and permit the fact-finder to assess reliability of the principle itself,” Martinez, 3 F.3d at 1198, the adversary omitted). Where errors do not rise to the level of “negat[ing] the basis for the methodology itself.” Gipson, 383 F.3d at 697 (quotations and brackets methodology was so altered by a deficient application as to skew the reliable, outright exclusion of the evidence in question is warranted only if the unreliable under Daubert and the methodology itself is otherwise sufficiently a, I(c), “when the application of a scientific methodology is challenged as

correctness; it signifies a much lower standard, to wit, trustworthiness. See testimony. Cf In the evidentiary context, however, the term “reliable” does not mandate particular methodology in all instances renders inadmissible the expert’s entire that a single flaw or even multiple flaws in an expert’s application of a finder and gatekeeper. Indeed, it would be unreasonable to interpret section I(c) as requiring may be presented and to maintain the division in function between the factand applied with some flexibility to encompass the multitude of scenarios that unreliable opinion or conclusion. Thus, RSA 516:29-a, I(c) must be interpreted multiple errors by the expert in applying the methodology might result in an expert’s conclusions. Still, there may be rare instances where a single error or methodology cannot in every circumstance contaminate the reliability of an reading would lead to an absurd result.”). Errors in the application of a (“[W]e will not interpret statutory language in a literal manner when such a

. Cayten v. N.H. Dept. of Envtl. Servs., 155 N.H. 647, 653 (2007)

see also In re Paoli, 35 F.3d at 746. reliable and relevant evidence, not flawless evidence. Dahood, 148 N.H. at 727; and RSA 516:29-a is simply to ensure that a fact-finder is presented with 702-72, 77 (J. McLaughlin, ed., 2d ed., 2008). The overall purpose of Rule 702 Weinstein & M. Berger, Weinstein’s Federal Evidence §§ 702.05[1][a], [2][a], at

testimony. the methodology to the facts of the case before admitting the witness’s require the court to examine whether a witness has in actuality reliably applied assistance to the fact-finder.” Rather, RSA 516:29-a, I(c) extends further to principles or methods “are applicable to an issue in th[e] case, and are of statute does not limit the trial court to preliminarily assessing only whether the facts of the case.” (Emphases added.) Contrary to the State’s assertion, the whether “[t]he witness has applied the principles and methods reliably to the p. 12 12

(1995); and a second expert could easily have reviewed Corson’s deposition or Daubert 1075 (10th Cir. 1994), cert to find Corson’s testimony inadmissible based upon this error. During the. denied, 514 U.S. 1029 (1995), and 514 U.S. 1088 application of ACE-V to this case; cf however, that it was an unsustainable exercise of discretion for the trial court. United States v. Davis, 40 F.3d 1069, opportunity to cross-examine Corson to uncover potential errors in her application of the ACE-V methodology to the latent print at issue. We find, application of the ACE-V methodology on the stand. The defendant had the NHSPFL protocols required Corson to take bench notes documenting her submitted her conclusion for verification. Essentially, Corson repeated her competing testimony, we assume for the purposes of this discussion that observed its characteristics, then compared the prints, evaluated them, and We first address Corson’s failure to take bench notes. In light of the first, observed its characteristics, then examined the known impression, methodology to the latent print, testifying that she analyzed the latent print of the latent print, she also detailed precisely how she applied the ACE-V applying the ACE-V methodology to the latent print. Using an enlarged image

hearing, Corson testified that she followed all other protocols in

would be reliable if either of these alleged errors was corrected. methodology.” It noted that Corson’s application of the ACE-V methodology result, but rather as a check and balance on the application of the required blind verification “not as a means of assuring the credibility of the is based on reliable application of the ACE-V methodology.” The trial court those notes w[ould] assist [it] in determining whether a particular identification evidence . . . that [the] ACE-V [methodology] was reliably applied.” “[R]eview of protocols were followed” because “the [S]tate has more opportunities to present explained that it “require[d] something more than testimony that established failure to employ blind verification. With respect to bench notes, the trial court memorializing how she adhered to the ACE-V methodology; and (2) NHSPFL’s unreliability upon two alleged errors: (1) Corson’s failure to take bench notes of the ACE-V methodology unreliable. The trial court based its finding of The State argues that the trial court erred in finding Corson’s application

brackets omitted). United States v. Vargas, 471 F.3d 255, 265 (1st Cir. 2006) (quotations and they will not grasp its complexities or satisfactorily weigh its inadequacies.” cross-examination -- rather than excluded from jurors’ scrutiny for fear that be tested by the adversary process -- competing expert testimony and active long as an expert’s scientific testimony rests upon good grounds, . . . it should (citation omitted)); see also Gipson, 383 F.3d at 697. We emphasize that “as inadmissible, “they simply go to the weight of the . . . evidence proffered.” concerning whether blind verifications are required or even recommended, cf p. 13 Given the uncertainties still existing in the fingerprint community

Corson’s conclusions negated the basis for the reliability of the ACE-V The record contains no indication that NHSPFL’s failure to blindly verify admissibility that NHSPFL blindly verify Corson’s identification in this case. unsustainably exercised its discretion by requiring as a prerequisite to id. at 72-73, and the small number of misidentification cases, the trial court

[also] found ACE-V to be reliable under Daubert a reliable method for analyzing latent fingerprints.” “[F]ederal courts have unreliable. a new thing entirely.” Indeed, the trial court found that, “in general, ACE-V is correct, the record contains no indication that non-blind verification is Starrs testified, in the fingerprint community, the “blind verification process is verification may ensure with a higher level of certainty that an identification is and SWGFAST may potentially recommend blind verification for such prints, as verification actually leads to more accurate results. To be sure, while blind FBI may have recently implemented blind verification for single latent prints demonstrates, the fingerprint community is currently debating whether blind We next address NHSPFL’s failure to employ blind verification. While the the use of blind verification. Further, as the testimony of Starrs and Ostrowski that ACE-V methodology has been reliably applied in countless cases without of misidentification cases using ACE-V methodology do exist, it is undisputed (1st Cir. 2006) (citations omitted). While we acknowledge that a small number in the ACE-V may not be blinded.” United States v. Mahone, 453 F.3d 68, 72

finding Corson’s testimony unreliable because she failed to take bench notes. opinion. Accordingly, the trial court exceeded its gatekeeping function by demonstrated through Corson’s testimony that she had good grounds for her basis for the reliability of the ACE-V methodology itself, as the State correctly from the jury’s scrutiny). It did not so infect the procedure as to negate the In this context, while bench notes may have demonstrated that Corson examiner’s testimony better tested by the adversary process than by exclusion testimony. Cf. Vargas, 471 F.3d at 263, 265-66 (explaining that deficiencies in bench notes serves only to undermine her credibility and the weight of her that he performed DNA protocols reliably). If anything, Corson’s failure to take methodology to the case); Martinez, 3 F.3d at 1198 (requiring expert to “attest” sufficient” to support a finding that the examiner reliably applied ACE-V at 265-66 (concluding that fingerprint examiner’s testimony was “more than applied the methodology reliably to the facts of the case. Cf. Vargas, 471 F.3d recollection on the stand, they were not necessary to determining whether she

applied the ACE-methodology or have served to refresh Corson’s

application of the ACE-V methodology. See Morrow, 374 F. Supp. 2d at 67-68. Daubert hearing testimony and identified specific deficiencies in Corson’s p. 14 14

Reversed and remanded

BRODERICK, C.J.