The Daubert World, Past, Present, and
Future, Las Vegas, Nevada, 21-23 June 2002,
Sponsored
by The American Board of Forensic Document Examiners, Inc.
The premise
for this conference was to prepare the forensic community to meet
court challenges to a specific discipline whether it is documents,
fingerprints, ballistics, etc. The common name for such a challenge
is a Daubert Hearing. A wide variety of speakers ranging from
judges to forensic scientists gave presentations. Many different
points of view were offered. All presenters ended with basically
the same message, “Be Prepared”. A lot of information was gleaned
at the conference; I will try to relay what was relevant to the
Latent Print Examiner.
The
conference began with a presentation by Justice Joseph Maltese of
the NY Supreme Court. Justice Maltese spoke on the Frye decision
and the Daubert Trilogy. Frye v. U.S (1923) had to do with what was
known back then as the systolic blood pressure deception test,
a.k.a. the lie detector. The courts ruled that they would admit
expert testimony deduced from a well-recognized scientific principle
or discovery “generally accepted” in the field in which it belongs.
It took a few
years (seventy) for the next major challenge, Daubert v. Merrell Dow
Pharmaceuticals (1993). This U.S. Supreme Court decision turned the
lower court judge into a “gatekeeper” of evidence. Before admitting
scientific, technical or other specialized knowledge, a court should
ascertain whether the evidence or testimony relative to a theory or
technique: 1. Can be or has been tested? 2. Was subjected to Peer
Review and Publication? 3. Is there a known or potential Rate of
Error? and 4. Is “Generally accepted” in the relevant scientific
community. The second case of the trilogy was General Electric v.
Joiner (1997). In brief the lower court judge excluded the opinion
of the plaintiff’s experts. The plaintiff lost and appealed, The
U.S. Court of Appeals ruled in plaintiff’s favor, the defendant
appealed. The U.S. Supreme Court reversed the Court of Appeals and
stated the Trial Court has sole discretion to admit or reject
proposed scientific evidence. The third case was Kumho Tire v.
Carmichael (1999). In this case the U.S. Supreme Court ruled that
all matters of expert testimony whether it be scientific, technical,
and other specialized knowledge are to be reviewed for their
methodology in forming conclusions or opinions. The most recent case
to make headlines was U.S. v. Plaza. In this case the Honorable
Judge Pollak ruled that friction ridge skin is permanent and unique
but an expert cannot testify that a particular latent print matches
or does not match the rolled print of a particular person. The
prosecutor appealed and the Judge reversed his decision.
Justice
Maltese next spoke on expert testimony. The cases above tell us one
of the inherent powers of a trial judge is to act as a “gatekeeper”
and rule on the admissibility of testimony and other evidence. We
know that battles are taking place in these trial courts across the
county. Anyone who gives an opinion as an expert is susceptible to
being challenged at a Daubert Hearing. Know the difference between
a lay witness and an expert witness. Know what is expected of you
as an expert when you take the stand.
David Leta,
United States Attorney, Atlanta, Georgia, recommended that when
completing reports to follow the guidelines of Rule 16 of the
Federal Rules of Civil Procedure. Rule 16 states that the
government shall disclose to the defendant a written statement of
testimony that the government intends to use under rules 702, 703,
or 705 of the Federal Rules of Evidence, during it’s case-in-chief
at trial. The summary provided under this subdivision shall describe
the witnesses opinions, the basis and reasons for those opinions,
and the witnesses qualifications. Mr. Leta suggested that each
report have all this information attached. For example, when
completing a report identifying a suspect, attach the case notes,
the methodology used to make the identification, a chart showing the
characteristics identified, the examiner’s qualifications, etc. As
you can imagine this wasn’t met with the warmest welcome. Think of
the time it would take to compete a basic report; even a
non-identification would require the same information.
Glenn
Langenburg, Minnesota Bureau of Criminal Apprehension, gave a
presentation titled “Defense Against the Dark Arts: Defending
Against the “Critics Curse”. He spoke of the three main critics,
Simon Cole, Prof. James Starrs, and Dr. David Stoney. He gave an
overview of their strengths and weaknesses. Glenn has done a lot of
research on this subject and would be a good source to call on if
facing off against one of these three individuals. Look for Glenn
at the upcoming IAI Conference.
The document
examiners have what they call a resource kit. This is a great
idea. It is a CD compiled with voluminous information (case law,
articles, etc.) to reference when faced with a Daubert Hearing. The
document examiners have a team of experts they call upon to assist
in defending their science against these challenges. This is
something the fingerprint community should possibly look into for
latent print examiners.
Dr. William
Babler, Indiana University School of Dentistry, presented the
“Prenatal Origin of Human Variation in Friction Ridge Development”.
Dr. Babler related that latent print examiners practice “Applied
Science”. He stated that scientific testimony must be delivered by
scientific method and the most important issue is verifiability for
scientific evidence. As most of you know Dr. Babler testified
during the Byron Mitchell case relative to the unique and permanent
nature of friction ridge skin.
In closing, this conference
was very informative, there is talk of having one every year. I
encourage you to attend. We in the forensic science field are going
to be facing many challenges in the courts over the next several
years. As Justice Maltese related we are in a revolution right
now. The last revolution was Miranda in the 60’s. If you are faced
with a Daubert Hearing don’t be afraid to ask for help. There are
many people who have already been through this willing to assist
you. Know your science, know your methodology, and last but most
important “Be Prepared”
when you go to
testify.