In his order, he says that no one can articulate a principle of anatomy, biology, physiology, pursuant to which two persons cannot have the same fingerprint.
Attorney Tamara Lave, a University of Miami professor of criminal procedure, said that she believes Hirsch is right. The reason: experts such as those at the National Academy of Sciences which authored a 2009 study on forensic evidence say language describing an absolute fingerprint match is unjustified.
What is unique is the joy in which he wrote his opinion. Most judges dont go through the trouble of quoting Shakespeare and great works of American Literature, Lave said.
But Hirschs reasoning flies in the face of decades of accepted science, said former Miami-Dade senior prosecutor Abe Laeser, who said the judges order will surely find its demise with the first higher court that touches it.
What is unfair about fingerprint evidence? Pointing to a group of smudged loops and whorls has no meaning unless a jury can be told by the expert that these two prints were both made by the defendant, Laeser said.
Then they can be cross examined until dawn, about an error rate or any other premise. The defense can call a conflicting expert. Then the jury decides if it is proven beyond a reasonable doubt.
The Miami-Dade State Attorneys Office bristled because Hirsch issued his order Thursday before prosecutors could write their reply to Borregos defense request to restrict the testimony of the fingerprint expert.
The judge also refused to recuse himself from the case, even though prosecutors said he initially told them that he would step down because of his pre-conceived opinions on the subject of fingerprints, according to court documents.
Hirsch is not the first modern judge to question the testimony of fingerprint experts.
A decade ago, U.S. Judge Louis H. Pollak of Philadelphia barred FBI experts from testifying that three murder defendants prints were to the exclusion of all other fingers in the world. At the time, prosecutors said the ruling could undermine criminal cases across the country.
But after more hearings, Pollak reversed his own ruling.
The admissibility of expert testimony on fingerprint identification is interesting as an academic issue, said former U.S. Attorney David Resnicoff, who worked on the case. But as a legal and a practical matter, it is rather straightforward. American and English courts have admitted fingerprint identification testimony for 100 years.