# Commonwealth v. Gambora > Massachusetts Supreme Judicial Court · September 2, 2010 · 457 Mass. 715 URL: https://www.frixlaw.com/law-library/cases/9779814 ## Case - **Full name:** Commonwealth vs. Jesus Gambora - **Court:** Massachusetts Supreme Judicial Court - **Decided:** September 2, 2010 - **Citations:** 457 Mass. 715; 933 N.E.2d 50; 2010 Mass. LEXIS 602 - **Precedential status:** Published - **Opinion:** Concurrence by Spina - **Judges:** Botsford, Cordy, Ireland, Marshall, Spina - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9779814 ## How later opinions describe it (automated extraction) - recognizing possibility that it may be error for fingerprint expert to state with absolute certainty that particular latent print matches known print, or that comparisons are error free - noting that, in a case where the trial court had already admitted evidence as relevant over defense counsel’s objection, defense counsel was not ineffective for failing to file a futile motion to strike ## Opinion text Spina, J. (concurring, with whom Ireland, J., joins). I concur with the opinion of the court but write separately to address the question of the form of opinion testimony by a fingerprint expert, raised by the defendant’s objection to the testimony of Detective Lieutenant John Drawee. Drawee testified that the latent prints had been “individualized” to the defendant, and that this meant to the exclusion of all others, and that the prints absolutely belonged to the defendant. His testimony was not presented as his opinion that the prints belonged to the defendant. Rather, he indicated that by applying the ACE-V process, the prints were “individualized” to the defendant. By contrast, Detective Lieutenant Brian O’Hara properly testified that in his opinion they belonged to the defendant. The defendant did not object to the form of O’Hara’s testimony, presumably because the form of his testimony, i.e., his opinion, was properly expressed. The details are set forth in the court’s opinion ante at 723. Fingerprint experts should not be permitted to testify in the manner of Detective Lieutenant Drawee because it is not opinion testimony. He implied that the output of the ACE-V process here was an absolutely certain identification. No discipline, much less fingerprint analysis, has ever been shown to produce *736 results that achieve absolute certainty. Although some courts have looked on fingerprint analysis as the gold standard of virtually all science, 1 this view recently has been criticized by the 2009 report of the National Research Council. See ante at 725-726 nn.13, 14. While we normally leave the humbling of inflated opinions to cross-examination, there is a danger that the mystique of fingerprint identification, which has had a captivating hold on the criminal justice system and society at large for more than one hundred years, is such that cross-examination may not be enough to rectify the effect of a fingerprint expert’s use of such terms as “individualized,” “absolute,” and “match” when testifying, as opposed to presenting the testimony as his or her “opinion” that the latent fingerprints are the defendant’s. See Commonwealth v. Banville, ante 530, 540-541 & n.3 (2010). While the “science” of fingerprint analysis may be valid, claims by its practitioners that the process can establish identity with absolute certainty are not. Each stage of the ACE-V analysis depends on the judgment of a human being to make “somewhat objective” or subjective determinations. Commonwealth v. Patterson, 445 Mass. 626, 630 (2005). See ante at 725-726 nn. 13, 14. Claims of absolute certainty are particularly irresponsible by a science based in large part on human judgment. In the context of a criminal trial, I would hold that, in the interest of maintaining the integrity of the fact-finding process, in the interests of justice and fair play, fingerprint experts be prohibited from expressing the results of their analysis as absolutely establishing identity, or individualizing fingerprints to a particular individual to the exclusion of all others. They should be confined to an expression of personal opinion that the latent print belongs to the defendant. *737 Trial counsel did exemplary work here in cross-examination. In addition, Detective Lieutenant O’Hara’s proper opinion testimony at the verification stage of this ACE-V analysis, the defendant’s own testimony, and other evidence identified by the court resulted in no prejudice to the defendant. See, e.g., Cooper v. Brown, 510 F.3d 870, 959 (9th Cir. 2007) (Appendix A), cert, denied sub nom. Cooper v. Ayers, 130 S. Ct. 749 (2009) (“Unlike fingerprint comparison, an absolute match is not possible when comparing hairs”); People v. Cooper, 53 Cal. 3d 771, 799 , cert, denied, 502 U.S. 1016 (1991) (same). See also Clark v. State, 140 Md. App. 540 , 601 n.19 (2001); People v. Rush, 165 Mise. 2d 821, 822 (N.Y. Sup. Ct. 1995), aff’d, 242 A.D.2d 108 (N.Y. 1998), where courts quoted, with approval, testimony of experts who distinguished their respective disciplines (soil and DNA [deoxyribonucleic acid] analysis) from fingerprint analysis as lacking the ability to make an absolute identification. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779814. Public record. Not legal advice.