The Use of Fingerprints in Pennsylvania Criminal Cases

Fingerprinting in Pennsylvania Criminal Cases

Philadelphia Criminal Lawyer Zak Goldstein

Law enforcement officers frequently attempt to solve criminal cases through the use of fingerprints in Pennsylvania. This guide explains when the police may take your fingerprints, whether you may ever have those fingerprints destroyed, and some of the problems inherent in fingerprint examination. It also discusses the recent case of Commonwealth v. Presher, in which the Superior Court held that the a court may not order a defendant to submit to fingerprinting after the defendant has been found not guilty at trial. The effect of the court's holding will be limited due to the relatively rare circumstances present in this case, but the Superior Court issued strong language in rejecting the idea that the trial court could continue to exercise jurisdiction over a defendant who has been acquitted. 

Will the police take my fingerprints if I get arrested in Pennsylvania?

The answer to this question is yes, with some exceptions. In Pennsylvania, the law requires a defendant who has been charged with a felony, misdemeanor, or certain summaries to undergo fingerprinting after being arrested. In most cases, you will be fingerprinted when you are taken to the police district upon arrest. In some cases, if you are not arrested and the case was initiated by a summons, the summons will command you to go to the police station to be fingerprinted. The summons will typically instruct you to have this done prior to the preliminary hearing; if not, then the magisterial district justice will usually order that it be done. Additionally, if someone filed a private criminal complaint against you, then you will be fingerprinted if you are convicted. Accordingly, the only time you do not have to worry about being fingerprinted is if you are arrested for a summary offense that does not have a recidivist misdemeanor clause in its statute and the case is not proceeded by a summons.  

What happens if I refuse to be fingerprinted? 

The failure to comply with this order could eventually result in the revocation of bail if a case is pending or a finding of contempt of court. In some cases, however, the police and prosecutors do not realize that the defendant has not been fingerprinted, and the case may fall through the cracks without the defendant getting fingerprinted. 

Can the police make me give my fingerprints if I have not been charged with a crime? 

There are ways for the police to get your fingerprints if they are still investigating the case and have not charged you with a crime. For example, the police could ask you for your consent. If you give consent, then the police can take your fingerprints without a warrant or an arrest. If you refuse to consent to fingerprinting and the police have not arrested you, then they could ask a judge to sign a search warrant ordering you to provide your fingerprints. In that case, the police would be able to get your fingerprints prior to making an arrest. If you refuse to provide them, then you could be held in contempt of court and arrested. Additionally, the police could use trickery to obtain your fingerprints. For example, if they remove an item from the trash that has your fingerprints on them, they would most likely be allowed to use any viable prints lifted from the item.  

Can I have my fingerprints destroyed if I win my case?

Unless you were fingerprinted as a juvenile, the answer to this question is no. Once you are arrested as an adult, the government will have your fingerprints for the rest of your life. This is true even if you win your case and obtain an expungement of your criminal record because the District Attorney is permitted to retain their case file in order to determine eligibility for diversionary programs in the future. Typically, once you are arrested, your fingerprints will be entered into the Integrated Automated Fingerprint Identification System, which is commonly referred to as AFIS. This is a system that holds thousands of fingerprints. As discussed later, this can be a real problem because fingerprint "science" is not perfect, and you could be arrested if a lab technician later subjectively determines that your fingerprints "matched" prints that were found at a crime scene.

How do the police analyze fingerprints?

Police frequently attempt to lift fingerprints in order to solve robbery, burglary, and other theft cases where there are no eyewitnesses. For example, let’s say that someone commits a burglary at a residence and leaves fingerprints on a glass door. A crime scene investigator will arrive and and “lift” the print from the door. This requires a lot of care because a print can easily be smudged or altered. Assuming the technician does not botch the lifting of the print, the police will then run the print through the AFIS system. At this point, the system will generate 20 fingerprints for a lab technician. It is important to note that lab technicians are not required to have a degree in forensic science. In fact, in Philadelphia, a technician does not even need to be a college graduate and need only have a high school diploma. Further, in Philadelphia, the unit that is responsible for analyzing fingerprints is not accredited.

After AFIS generates the potential matches, the technician will review the prints and see if he or she can find a “match.” In determining whether there is a match, the technician will look for several features of the print. Typically, there are about 150 characteristics of a fingerprint. However, there only needs to be between 10-12 similarities for a technician to say that someone’s prints match those taken from a crime scene. Further, in Philadelphia, these technicians will not analyze all 20 prints. Instead, they will just analyze a print until they find one that they believe is a match. After the technician believes they found a “match,” they will then dispose of the remaining prints.

In determining whether there is a match or not, the technician does not use a computer system to review the matches. Rather, the technician will use a magnifying glass or some other object to enhance his or her vision and make a determination using their eyes to see if there is a match. This may go without saying, but this is clearly subjective and not actual science. The use of the term "match" implies that computers are processing this data, but in reality, fingerprint "matches" are based solely on the subjective personal opinion of the examiner. 

Is fingerprint science perfect? 

Of course not. As discussed above, fingerprint examination is not really science. It is no surprise that mistakes happen, and these mistakes are not limited to the Philadelphia Police. In 2004, terrorists attacked trains in Madrid, Spain. This was a horrific event where 192 people were killed and thousands were injured. The United States government assisted the Spanish government in trying to track down who was responsible for these attacks. Specifically, the FBI was sent to help solve this case.  

During the investigation, the authorities located a fingerprint on a bag that contained one of the detonating devices and were able to lift the print. Based on their review of the print, the FBI concluded that it belonged to a Brandon Mayfield, a U.S. citizen who had been an FBI person of interest for quite some time. Consequently, Mr. Mayfield’s home was wiretapped and he eventually was arrested. However, Brandon Mayfield was not responsible for these acts. Investigators later concluded that that particular fingerprint belonged to a Ouhnane Daoud, an Algerian national. Eventually, the charges were dropped, and the United States government settled a lawsuit with Mr. Mayfield. Mr. Mayfield’s case shows how unreliable fingerprint analysis can be.         

Commonwealth v. Presher

In Mr. Presher’s case, the Superior Court did not get into the factual history of the case in great detail. However, what we do know is that he was charged with theft and receipt of stolen property. Additionally, Mr. Presher’s case was proceeded by a summons which means that he was subjected to the pre-conviction fingerprinting requirements. However, for some unknown reason, Mr. Presher was never fingerprinted.

Mr. Presher then proceeded to have his case tried by a jury where he was acquitted of all charges. Despite this, the Commonwealth still asked that Mr. Presher be fingerprinted. The trial court granted the Commonwealth’s motion. Mr. Presher then filed a motion for reconsideration, however that was denied. He then filed a timely appeal.

Can a court make me give my fingerprints if I was acquitted?

If you have already been fingerprinted, then the answer is unfortunately that your fingerprints will remain in the system. If you managed to make it to trial, however, then you cannot be ordered to submit to fingerprinting after an acquittal. The Superior Court recently addressed this issue in the case of Commonwealth v. Presher. In Presher, the court held that a defendant who has been acquitted cannot be required to submit to fingerprinting.    

In making its decision, the Superior Court focused largely on the language used in 18 Pa.C.S. § 9112 (b)(2). The statute reads:  

Where defendants named in police complaints are proceeded against by summons, or for offenses under section 3929 (relating to retail theft), the court of proper jurisdiction shall order the defendant to submit within five days of such order for fingerprinting by the municipal police of the jurisdiction in which the offense allegedly was committed or, in the absence of a police department, the State Police. Fingerprints so obtained shall, within 48 hours, be forwarded to the central repository in a manner and in such form as may be provided by the central repository.

The Superior Court's rationale stemmed from the fact that § 9112(b)(2) uses the word “defendant.” It does not use the word person, which is different from § 9101(a) which uses the word “person.” This is significant because for Mr. Presher, his case was initiated by a summons and thus fell under § 9101(b)(2).

After Mr. Presher was acquitted of his charges, the Superior Court held that he was no longer a “defendant.” Therefore, he was not subject to the fingerprinting requirements of § 9101(b)(2), and thus the trial court was incorrect in ordering him to provide his fingerprints to the Commonwealth. The Superior Court reasoned that if they ordered Mr. Presher to provide his fingerprints this would amount to a post-acquittal punishment.   

Experienced and Understanding Philadelphia Criminal Defense Attorneys

If you are charged with a crime and the police are using fingerprint evidence against you, you need a skilled attorney with the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully litigated countless cases where the Commonwealth used fingerprint evidence against our clients. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.