On Remand: Prints Finger The Guilty – And The Innocent?

On a September night in 1910, after breaking into two homes to molest Chicago women, Thomas Jennings headed to a third house, the Hiller’s. Around 2 a.m., Mrs. Hiller noticed that a gas lamp in the hallway had gone out. She woke her husband to investigate, who encountered Jennings at the top of the stairs near the room of the Hiller’s ten-year-old daughter Florence. The men fought, tumbling down the stairs. In the struggle, Hiller was shot and killed. Jennings fled, but was arrested soon after when off-duty officers (unaware of the murder) noticed he had fresh blood on his clothing and was sweating. Back at the Hiller home, investigators discovered the impression of four fingers in the fresh paint on the porch railing. At Jennings’ trial, four witnesses testified that the porch railing prints matched those of Jennings. Over the defense’s objection, Chief Justice Carter accepted the fingerprint evidence, stating:

When photography was first introduced it was seriously questioned whether pictures thus created could properly be introduced in evidence, but this method of proof… is now admitted without question. We are disposed to hold… that there is a scientific basis for the system of finger print identification, and that courts are justified in admitting this class of evidence; that this method of identification is in such general and common use that the courts cannot refuse to take judicial cognizance of it. Such evidence may or may not be of independent strength, but it is admissible, the same as other proof, as tending to make out a case.

Appropriately, the Judges Hand (Learned and Augustus) were involved in the next significant opinion relating to fingerprint evidence. In the prohibition-era case United States v. Kelly, defendant Mortimer Kelly argued that it was illegal for the police to fingerprint him after his arrest for selling gin to an undercover agent. But Augustus Hand, writing the opinion, had his finger on the pulse of the realities of 1932:

[Finger printing] has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.

Hand found no Fourth Amendment violation in taking prints from a suspect, stating that “[a]s a physical invasion it amounts to almost nothing, and as a humiliation it can never amount to as much as that caused by the publicity attending a sensational indictment to which innocent men may have to submit.”

By the 1960s, fingerprint evidence was widely accepted in United States courts. In a 1963 D.C. Circuit Court opinion, future Supreme Court Chief Justice Burger held that “… it is elementary that a person in lawful custody may be required to submit to… fingerprinting as part of routine identification process.” And just a few years later the Supreme Court stated in dicta that fingerprinting didn’t violate the Fifth Amendment right against self-incrimination.

But fingerprinting’s history is not free of smudges. Following the March 11, 2004, terrorist bombings in Madrid, Oregon lawyer Brandon Mayfield involuntarily became the face of the fallibility of fingerprint identification. As recounted in the Ninth Circuit’s decision on a separate issue, the Spanish National Police sent the FBI digital photos of latent fingerprints lifted from a bag found near the bombing site. The FBI’s analysis revealed twenty possible matches, including Mayfield, who was in the fingerprint database because he had served in the U.S. Army. Mayfield, a U.S. citizen, and a Muslim with “strong ties to the Muslim Community,” was put under surveillance. The Foreign Intelligence Surveillance Court also authorized “covert” searches of his home. Mayfield quickly noticed the signs: Carrie Mathison on his front lawn, doors usually left unlocked at his house were locked, the blinds were raised to different heights, and he found a large footprint on his living room carpet.

Although Spanish Police doubted the match to Mayfield, the FBI filed an affidavit in district court stating that their experts considered one of the prints a “100% positive identification” of Mayfield. After an independent fingerprint expert confirmed the match, Mayfield was arrested in May 2004 as a “material witness” and jailed for two weeks. According to Mayfield, during this time he was “subject to strip searches, sleep deprivation, unsanitary living conditions, shackles and chains, threats, physical pain, and humiliation.” Then, on May 20th, after Spanish Police announced that the fingerprints matched those of Ouhane Daoud, an Algerian citizen, Mayfield was released.

A few months later, Mayfield and his family sued the U.S. government for unlawful arrest and imprisonment, and illegal searches, seizures and surveillance, among other claims. In 2006, the case settled for $2 million, a formal apology, and the unusual concession from the government that Mayfield could pursue his constitutional case against the Patriot Act. (Mayfield lost that case because he could not show that he had standing.)

Just as photographs and physical descriptions gave way to fingerprinting more than a century ago, today police look to DNA evidence to solve crimes.  In 2013, the Supreme Court held in Maryland v. King that the police may take a DNA sample from an arrestee, as long as the arrest is supported by probable cause.  In the opinion, Justice Kennedy compared collecting cheek swab DNA samples to fingerprinting, something already deemed acceptable under the Fourth Amendment.  A “dream team” made up of Justices Scalia, Ginsburg, Sotomayor, and Kagan, dissented.  In the dissent, Scalia called the majority’s comparison of DNA samples to fingerprinting inapt and wrote that he doubted that “the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at

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