San Jose Police Department withheld inconsistencies in fingerprint evidence

Recent reports reveal that the San Jose Police Department has withheld fingerprint evidence in cases for years: when technicians disagreed whether a print could be positively identified with one recovered at the scene, dissenting opinions were omitted. Attorneys were never informed that that technicians found inconsistencies or that there was any contention between analysts regarding their conclusions. Unfortunately, the police department continued to engage in this unlawful practice, even after outside experts and prosecutors warned them this was illegal.

Irreparable Damage
Usually the destruction of evidence, especially of exculpatory value, can result in curative instructions to the jury, exclusion of evidence, or dismissal of the charge. California v Trombetta (1984) 467 U.S. 479. However, cases affected were likely resolved and attempting to rectify the damage mandates reopening cases, overturning convictions, and granting motions for new trials in each of these cases. Actualizing these remedies will be difficult since the police department did not maintain a record of the inconsistencies in fingerprint samples.  As a result, attorneys cannot even examine this potentially suspect evidence.

Fallibility in Fingerprint Science
The reliability of fingerprint evidence has come under scrutiny for a variety of reasons: the difficulty of analyzing smudged and partial prints, lack of uniform standards, competency of analysts, and the lack of funding for independent labs. Several high profile cases of mistaken identification, including Brandon Mayfield and Steven Cowans, have led to questions about this "error-proof" science. 

• In 2004, Mayfield, an Oregon attorney, was arrested and held as the suspect in a terrorist attack in Madrid based on a latent print found at the scene. He insisted he had not left the country in ten years, but his claims were ignored until Spanish police found a suspect whose prints were a closer match to those recovered.
• Cowans was convicted of second degree murder of a police officer and was imprisoned for six years based on fingerprint evidence. In 2004, he was freed when it was revealed that the expert who testified had concealed information that the fingerprints excluded him as the perpetrator.

Consequently, in 2005, the FBI modified its standards to require analysts to record inconsistencies and provide them to defense attorneys in compliance with the law.  In addition, FBI regulations now require analysts to work independently of one another, so the conclusion of the first analyst will not sway or pressure the opinion of the second analyst.  Despite these developments, local departments have yet to adopt uniform standards

In addition, it is also imperative to establish independent laboratories which are not affiliated with law enforcement or prosecutors. For instance, in Orange County, a lab analyst accused the prosecutor of pressuring her to change her conclusion that the DNA found at the scene did not match that of James Ochoa, the man being charged with the crime. After 16 months of being incarcerated for a carjacking he did not commit, Ochoa was released when DNA implicated another man as the perpetrator.

The Problems with "Playing God": Government as the Judge, Jury, and Executioner
Concealing and destroying unfavorable evidence is a recurring theme of late, from local officials to federal agencies.

• The Santa Clara District Attorney's office is under fire for allegedly having knowledge of 3,300 videotapes of medical examinations in sexual assault cases which were never turned over to the defense. 
• The CIA destroyed 92 videotapes of interrogations of terror suspects, under the auspices that they were concerned that they could expose agency officials to legal risks.

Irrespective of the agency; the oft repeated adage of subverting the law to protect the safety of citizens becomes stale. In a democracy, a system of checks and balances, and a country where the Constitution governs, authorities cannot "play God" and decide who deserves access to crucial evidence. Widespread governmental misconduct erodes public trust in authorities and faith that law enforcement will protect and serve our communities.