T H E
D E T A I L
Monday, March 4, 2002
Good morning via the "Detail," a weekly e-mail newsletter that
greets latent print examiners around the globe every Monday morning. The purpose of the Detail is to help keep you
informed of the current state of affairs in the latent print community, to
provide an avenue to circulate original fingerprint-related articles, and to
announce important events as they happen in our field.
BREAKING NEWz you can
3-DAY RECONSIDERATION HEARING
ENDS WITH CAUTIOUS OPTIMISM
Several of those present feel cautiously optimistic regarding the possibility of
Judge Pollak reversing his own January 7th opinion to exclude testimony of
latent print examiners reporting a match. As Ed German reflects in a
post regarding the hearing, hopefully Judge Pollak will give "due and
timely consideration to all aspects of this matter."
NEW IAI PHOTO CONTEST This
year, the IAI invites you to submit photographs for entry into a photo contest
to be held in conjunction with the poster presentations at the conference in Las
Vegas. The IAI has also put a section on the web page regarding guidelines
for both the posters and the photos. Content on the photos are open this
year, and depending on response, categories may be implemented next year.
Dennis Honeycutt, coordinator for the session, says "this being the first
time for this contest, we just wanted to see how it would go, therefore we left
it open; we are looking for a wide variety of photos." Up to two
photos may be entered, and they must be a minimum size of 14 x 16 and maximum of
20 x 20, and must be mounted on foam board with no
I asked Dennis specifically about the content of the photos, since I have a
creative mind and I am proficient in Adobe Photoshop. He insists that any
photo will be taken this year, and would like to see a lot of photos in keeping
with the spirit of the educational conference. I plan on having a little
bit of fun with one of my entries, but I also expect to see case photos,
fingerprint comparisons, unique patterns, nature shots, and anything else you
can think of. Get in on the fun!! Contact Dennis Honeycutt at:
It's BidNow Week!
As you know, clpex.com auctions off a unique fingerprint-related item on Ebay
starting the first Monday of each month. Congratulations to the lucky
winner of the ACE fingerprint kit last month. They stole it for under
$5!! My wife wasn't very happy because I paid more than that for it, but I
explained it's all good fun, and gets you guys involved. Up for auction
this week is "Classification and Uses of Finger Prints" by none other
than Sir Edward Richard Henry. And as usual, all auctions start off at one
penny with no "reserve." I'm sure you won't let this one go for so
A 3-day Daubert workshop is planned for June. The American Board of Forensic
Document Examiners is hosting the workshop. It will have discipline specific
sessions for both QD and LP examiners and general sessions combining both
disciplines' general Daubert issues. Attendance is limited to 150, so get your
reservations in and the word out quickly. Check out their announcement
and registration form.
Simon Cole and Michael Lynch
Receive 1 Year NSF Grant The
Cornell Chronicle reports that $144,000 has been awarded to the pair to
conduct a year long comparison study on the science and sociology involved in
DNA and fingerprints Some interesting comments from Lynch are given in
this article, such as "whether fingerprinting is science or not is beside
the point. The question is, is it good evidence?" Perhaps the
joint effort will temper the apparent stark differences of opinion between the
researchers regarding fingerprint examination.
Last week, we were privileged with the
second in a (broken) series of articles by Ron Smith involving courtroom
testimony. This, and other past Details are available in the Detail Archives.
This week, we take a look at some of
the recent news regarding events in the Philadelphia hearing in Judge Pollak's
courtroom. As most of you know, on the table is the Government's Motion
for Reconsideration asking Judge Pollak to change his mind on his January 7th
ruling to exclude the opinion portion of latent print examiner testimony in the
US v Plaza case.
We will probably be provided with more
detail on topics involved in the hearing at a later date, but much of the
media-reported controversy surrounding the hearing resulted from the attack of
the FBI's proficiency tests by the defense witnesses. For a complete,
up-to-date list and links to these somewhat exaggerated news articles, see the Plaza
page of the site.
We are left with the Judge advising
that we will have a decision within two weeks.
So we find ourselves, as a field,
within a wide range of reaction, caught somewhere between the frantic e-mails of
friends and family wondering, after reading a newspaper article, if we will be in the unemployment lines tomorrow
and the knowledge deep within us that our science, as some have put it on
related discussion forums, is the only exact forensic science. Some of us
are nearer to one end than the other. I felt it appropriate to solicit the
concept of this weeks Detail from a post on the Detail chat board a few weeks
ago entitled "Don't Panic." Perhaps you can glean a bit of
comfort (if you are on one end) or a rude awakening (if you are on the other)
from this weeks Detail by Pat Wertheim, entitled "Don't Panic... BUT"
Don’t Panic – BUT . . .
by Pat Wertheim
Although recent court challenges to the scientific validity of
fingerprint evidence have upset many examiners, there are a number of
reasons why we should not panic. First, any examiner who has been in
court knows that an aggressive defense attorney will attack the evidence
no matter how good it is. Fingerprints are usually the most damning
evidence, so a good defense attorney will focus the attack there –
against you, the fingerprint examiner, and your evidence. This is
forty challenges have resulted in complete acceptance of fingerprint
evidence in court. None have yet resulted in actual restrictions. A few
of the challenges have been full pre-trial Daubert hearings, but most
have been lesser challenges made during the trials. Some have even been
made in Frye states where Daubert does not apply and where they have
been inappropriately disguised as Frye challenges. Of all of the
challenges reported, only one has resulted in a ruling potentially
restricting fingerprint testimony. In a preliminary decision, Judge
Pollak ruled that a fingerprint examiner may testify and present charted
enlargements, but may not give a final conclusion. Judge Pollak held a
full hearing on the matter last week, but has yet to issue a final
decision. There were negative and incomplete newspaper stories, not to
mention rumors flying around on the internet, but Ed German, who was
there and gives a more accurate report
on his website, remains cautiously optimistic. However, even if Judge
Pollak allows his initial decision to stand, that single unfavorable
finding would be but a blip on the screen when compared to the over
forty favorable decisions.
Third, we need
to consider the expert witnesses used by defense attorneys to challenge
fingerprint evidence. David Stoney (a respected scientist) has appeared
in a couple of cases to testify to the lack of a statistical basis for
fingerprint identification, but he has also testified to positive
fingerprint identifications, which dilutes his effectiveness as a
Daubert witness against fingerprints. Allan Bayle has testified as a
Daubert defense witness only once. In spite of the fact that he
testified that the FBI’s proficiency test is too easy, more
significantly he testified that fingerprint identification is a valid
science and if the correct methodology is followed (ACE-V), the
conclusions will be reliable. Although a defense witness, he doubtless
did us far more good than harm.
two critical witnesses most often used by the defense are James Starrs
and Simon Cole. Don’t let their claims or their publications fool you
– neither Starrs nor Cole are scientists, and certainly neither is a
fingerprint expert. Starrs is a law professor and Cole is a historian.
Both are easy to discredit on the witness stand, as shown by the fact
that no court has ever recognized either as a fingerprint expert.
As an aside
here, I might mention that I am listed three times in the index of Simon
Cole’s book, Suspect Identities,
and in all three cases he makes massive errors. He gets his definitions
confused, his facts terribly awry, and even names of people completely
wrong. And it is not only in the references to me that he gets things
wrong – the whole book is chocked full of inaccuracies that are easy
to expose. If his research is that shoddy, how can one place any
confidence in his conclusions?
But to return to
the Daubert issues, one of the main points the defense attorneys are
pressing is that of “error rate.” They claim that erroneous
identifications occur and can readily be cited, and yet we have no
calculated error rate. Therefore, they say, all identifications are
suspect. However, according to Stephen Meagher (Section Chief, Latent
Fingerprint Section, FBI) and Paul Sarmousakis (Assistant US Attorney in
Philadelphia), and as we have seen in past Details, the US Supreme
Court, in its decision in Daubert v Merrill Dow Pharmaceutical, intended
consideration of “error rate” to apply to the error rate inherent in
a science or the methodology itself, not the error rate of the
individual practitioner. So when we testify that the error rate is
“zero,” what we mean is that no two people ever have had or ever
will have the same fingerprint and that ACE-V, when applied correctly,
will consistently produce reliable conclusions.
Not all fields
of science can make that claim. Some tests and methodologies, although
considered valid science, have significant error rates. Take, for
example, tests for cancer. There are false positive and false negative
results in many of those tests, regardless of the skill of the
administering doctor. That is the type of error rate the Supreme Court
intended for lower courts to consider in evaluating the reliability of a
scientific methodology. Judge Joyner (Mitchell case in Philadelphia)
clearly grasped the intent of the Supreme Court when he took notice that
the error rate of the science and methodology of fingerprint
identification is zero. Judge Joyner acknowledged that mistakes may be
made by individual examiners and he pointed out to the defense that they
always have the right to retain their own expert to review a case and
testify to mistakes make by the prosecution’s experts. That is the
proper way to deal with erroneous identifications – not to simply
throw out all fingerprint evidence because occasional mistakes might be
made by individual practitioners. For an analogy in a “live” debate
with Simon Cole for the BBC Radio program “World Service” last
summer, I pointed out to the moderator that if she were unable to
balance her checkbook one month, it would not be due to a breakdown in
the science of mathematics. Likewise, if a fingerprint examiner makes a
mistake, that does not invalidate the science of fingerprint
Daubert defense arguments, however, there are enough germs of truth to
merit our consideration. First of all, one of the main points the
attorneys are pressing is that we lack a standard for identification. In
a narrow sense that is true, at least to the degree that we lack a
clearly articulated standard
for identification. For most examiners, explaining the standard is sort
of like trying to define “pornography.” I think it was Jesse Helms
who said, “I may not be able to define it, but I know it when I see
it.” For most fingerprint examiners, the same is true of a fingerprint
identification. You may not be able to explain clearly the standard by
which you make an identification, but you know an identification when
you see one. The problem is not that we lack a standard, but that we do
not yet have widespread agreement upon a concise, clearly worded
second germ of truth to the defense challenges has to do with the issue
of testing and validation. While there is massive empirical proof of the
validity of fingerprint evidence, we do not have a complete model on
which to base statistical validation. Starting with Galton’s model,
which was terribly flawed, and proceeding down to the most recent study,
the FBI’s 50Kv50K study, all of the models have looked at
“points,” almost exclusively just bifurcations and ending ridges.
None have considered scars, creases, wrinkles, prominent sweat pores,
incipient ridges, ridge shapes, or any of the myriad of other features
that appear in prints. Whether you realize it consciously, your brain
uses these features in any identification decision. To be accurate,
then, a statistical model should include weighted values for these
features. That would not be an easy model to design and to date no
serious attempt has been made to include even scars or major creases,
much less “Level 3” detail. A number of us were looking forward to
the study proposed by the NIJ, but their withdrawal of the solicitation
means more delay in the search for such a model.
are some in our field who feel that such a study is a waste of time and
money. After all, don’t we have enough evidence that fingerprints are
permanent and unique? Why waste anything more on another study that
can’t possibly add anything? Or so goes the argument. But the truth of
the matter is that good science in any field is always being researched
and advanced. More studies and better models can only help advance our
science, as well.
third germ of truth to the defense challenges is that some fingerprint
examiners in the US receive inadequate training – not all, but some.
Unfortunately, because there is no nationally mandated standard for
training, some police agencies take the fastest and cheapest approach to
selection and training of new fingerprint examiners. Even barbers have
to go through mandated training and State licensing before they can cut
hair. But fingerprint examiners with the power to present evidence in
court resulting in long sentences, or even death sentences, face no such
requirement. Other countries have nationally mandated training programs
and competency testing for latent print examiners. In New Zealand and
Australia, for example, fingerprint examiners go through five years of
training and comprehensive testing before they begin case work and
testimony on their own. In the UK, the training period can range from
three to five years and is subject to several levels of review. But in
the US, a “fingerprint expert” might have as little as 40 hours of
training and no significant experience before his department assigns him
to case work without oversight or review. The solution, of course, is
not to throw out fingerprints altogether, but to mandate minimum
training and experience requirements before a new employee examines
cases without supervision. And the correct solution for the defense is
to question the training and experience of the examiner in the
courtroom, not challenge the science itself.
is a fourth germ of truth in the defense arguments that many fingerprint
experts are never tested for competency, nor are they checked for
accuracy. The sad fact is that many police agencies still do not
administer annual proficiency testing and have no measures in place for
assuring that things are done correctly. The IAI and SWGFAST may
recommend guidelines for the correct operation of a latent print
section, but compliance with these guidelines is strictly voluntary. For
some police agencies, unless they suffer a devastating civil lawsuit or
at least a major embarrassment over sloppy work, they will continue to
do things the way they always have, and that means inadequate training,
no proficiency testing, and little or no quality assurance.
sum up my assessment of these Daubert challenges, I might say that I
feel strongly both ways. I believe we face no serious threat to the
acceptance of fingerprint evidence in court. It is now and for over a
century has been the most dynamic and absolute means of personal
identification known to mankind. In spite the fact that defense
attorneys claim fingerprint identifications are unreliable, the courts
have consistently upheld the validity of what we do. But at the same
time, defense attorneys are exposing some truths. We should continue to
advance the science, not just rely on a century of success. We should
improve training, quality assurance, and testing and validation more
aggressively than we have in recent decades. Like other sciences, there
is always room for improvement. We cannot rest on our laurels.
As always, the Detail chat board is available for informal banter about the
Detail, or other latent print matters, and the onin Forum is available for
more formal discussions.
CLPEX.com this week...
Updated the CLPEX.com latent
print examiner bookstore with sold and new books.
Changed the instructions for
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Until next Monday morning, don't work too hard or too little.
Have a GREAT week!