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Monday, July 1, 2002

BREAKING NEWz you can UzE...

(UK) ID Cards - A Dumb Idea and Dangerous Too -30 June, 2002 - The Observer, UK - We decided compulsory smart cards were a pretty dumb idea and shelved it. Now it seems that Sir Humphrey has dusted it down and persuaded David Blunkett (of whom I expected better) to swallow it as gullibly as Jim Hacker.

BidNow week will be postponed until next week, as I just returned from 3 weeks away.  Look for our BidNow unique fingerprint-related item next week!


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.

Last week, we read the Chicago Fingerprint Forum Recommendations.  This week, Pat Wertheim and Floyd Bowen give us insight into the Daubert Symposium in Las Vegas, Nevada.  I mentioned last week about a Detail showing the potential of Adobe Photoshop in demonstrating an identification or the identification process, and have postponed that until next week in order to address the Daubert Symposium in a timely manner:


ABFDE Daubert Symposium
Hosted June 21-23

The American Board of Forensic Document Examiners (ABFDE) hosted a three-day symposium on Daubert issues June 21-23 in Las Vegas. The real shame was that while the maximum attendance was set at 150 document and fingerprint examiners, only about fifty of each actually came. Those 100 people received some outstanding training, well worth the time and money, and far better than many other training opportunities on the calendar this year.

From this latent print examiner's viewpoint, the highlight of the symposium was the lecture by Dr. William Babler on development of friction skin on the human embryo. Although I heard Dr. Babler testify in the Mitchell hearing in Philadelphia, his talk to this symposium went into more detail and was accompanied by amazing thin-section photographs of skin at the onset of friction ridge formation before differential growth leads to the appearance of ridge endings and bifurcations. Those who have never had the advantage of attending a lecture by Dr. Babler have missed one of the most truly enlightening talks you will ever hear. His enthusiasm for the topic is far greater than any professor I ever had in five years of university experience, and his depth of knowledge on the topic is unparalleled in the world today.

Another great speaker at the symposium was Justice Joseph Maltese of the New York State Supreme Court. Justice Maltese spoke on the trilogy of US Supreme Court cases affecting scientific evidence in the courtroom -- Daubert, Joiner, and Kuhmo Tire. But whereas other speakers I have heard have approached the discussion from a more scientific analytical perspective, Justice Maltese gave the perspective of a judge who has heard Daubert challenges and who expects to hear more of them. He explained why almost any judge would be highly reluctant to bar fingerprints from a courtroom, and his analysis of Judge Pollak's self-reversal was insightful.

Another judge presenting her views was Judge Stephanie Domitrovich of the Sixth Judicial District of Pennsylvania. As a judge who has ruled on Daubert hearings, her analysis of Daubert and the effect it has had in her courtroom also provided comfort for fingerprint examiners in the audience.

Dr. Moshe Kam from Drexel University discussed a study he conducted on error rates in document examination, and several of the latent print examiners left the symposium eager to see if a similarly designed study might not answer some of the critics regarding error rates in latent print examination.

Glenn Langenburg discussed the chief critics of latent prints -- Simon Cole, James Starrs, and David Stoney, and gave a detailed and accurate analysis of each of their arguments, with the correct replies should one find oneself dealing with those arguments in court.

Dr. Sargur Srihari, designer of the computer program used by USPS for their computers to "read" hand writing, gave a presentation on his research, which led this latent print examiner to wonder if his work wouldn't be easily adaptable to "seeing" and comparing level three detail in fingerprints.

Numerous other speakers added more food for thought and details unheard in other forums on Daubert. Although hosted by ABFDE, the program was evenly balanced between documents and fingerprints and many of the talks had crossover interest.

The ABFDE is tentatively planning on hosting another Daubert symposium next year, and I, for one, wouldn't miss it for anything. When you see the announcement come out later this year or early next, my advice would be to register immediately. Once word gets around how great this year's symposium was, I expect next year's to fill up quickly.

-Pat Wertheim


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.

-Floyd Bowen


For next week, I will TRY to format an internet version of a comparison similar to the Adobe Photoshop identification I charted out for use the VanDam trial, mentioned in the Breaking NeWz section last week.  I don't know how well it will translate into web images, but I'll give it my best shot.  If anyone has any strong feelings on whether or not courtroom demonstrations should be used to show the jury 1) the identification process AND/OR 2) the actual identification in that case, write up a paragraph (or page) or two for me to include in next week's Detail.  You know where to reach me: kaseywertheim@aol.com

As usual, for informal banter about the weekly Detail, visit
the CLPEX chat board (http://www.clpex.com/phpBB/viewforum.php?f=2)   And the onin.com forum (http://onin.com/fp/wwwbd/) is available for more formal discussion.


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Until next Monday morning, don't work too hard or too little.

Have a GREAT week!


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