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Monday, November 10, 2003

BREAKING NEWz you can UzE...
compiled by Jon Stimac

Fingerprinting Pushes Buttons -YORK DAILY RECORD, PA - Nov. 5, 2003 ...Banks are moving to increased security techniques to avoid fraud...

Teacher Sues Against Fingerprinting - TUSCALOOSA  NEWS, AL - Nov. 4, 2003 ...teacher fired for refusing to be fingerprinted has sued the Alabama Education Association for abandoning his cause...

Forensic Science is Crucial Witness in Sniper Case - VIRGINIA-PILOT, VA - Nov. 4, 2003 ...from fingerprints to hair and saliva shed along the way, the sniper may have left a confession...

First Team Found No Prints On Body - BANGKOK POST, THAILAND - Nov. 3, 2003 ...investigators who ruled that deceased shot himself insisted they found no fingerprints on his body which could have pointed to murder...

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 looked at a recent appellate court ruling from Florida regarding the digital enhancement of latent print images.  This week, in Wisconsin, a group of 22 examiners gathered together to discuss the applied science behind what we do, the fundamental principles which allow us to apply this science, the methodology and philosophy of that science, and the Daubert principles we are finding ourselves challenged with on a daily basis.  As with every Ridgeology Science Workshop, we discussed how horrible it would be to be faced with a courtroom challenge and not be able to address these principles in an articulate way.  We reviewed the most simple way to cover each of the issues we are being challenged on today.  To see comments about the workshop by those attendees who offered feedback, see the RSW15 page (of the CLPEX.com Training section under "Past Courses").  On the first day of class last week, I received an e-mail from a student I had in a Ridgeology Science Workshop about a year ago who, among other things, related the following:


… “I am not sure if I told you or not but I am going to do a Daubert Hearing on a rape case that I ID’d.  It is with a judge that will definitely give me a challenge.  I am looking forward to it…”

I know this examiner... and I know he realizes the importance of success in this hearing.  He has been studying the Daubert concepts, knows the foundation of his science, and he feels confident to address this challenge knowing that failure is not an option.  As it has been said before, the first examiner to lose a challenge will surely go down in fingerprint history!  :)  But he is confident in his ability to address these issues and prevail under what he knows will be tremendous pressure from the defense attorney, apparently the judge, and possibly defense witnesses who are critical of fingerprint examination.  He is also confident under the tremendous pressure from the fingerprint community toward success at all costs.

John Nielson's question to you this morning is this:  Do you have that confidence?


The State of Ship

“Red sky in the morning, sailor take warning. Red sky at night, sailor’s delight.”

For centuries, sailors used this adage to ensure their survival. In the age of wooden ships held together by soft iron spikes and wooden pegs, getting out of the way of dangerous weather was the only sure way to see tomorrow.

It’s my understanding that the saying is rooted in sound meteorological principles. But sailors of old didn’t require a Ph.D. in meteorology or have to know the error rate of their method to the third decimal point to invoke it. All they needed to do was to look, to observe, to ponder, and to understand the signs.

In the mid-1970’s I remember pondering and extrapolating population trends. They say that demographically, the Boomer generation looks like a snake that swallowed a pig—a huge bulge passing through from one end of the snake to the other. Assuming nearly static population growth, it didn’t take an economics degree to see a problem ahead.  Social Security started out with the “very few” being sustained by the “very many.” But one day, there would be more “takes” than “puts”—unless people were willing to surrender ¼ of their paycheck for Social Security alone.

Concurrent with this revelation I was taking one of those “enrichment” courses intended to produce a more well rounded person—I think it was Marriage and Family Interaction. At some point in the class it seemed appropriate (only to me) to state, “In its present form Social Security cannot last for our lifetime.” I remember almost every set of eyes looking at me with a mix of, “In what language are you addressing me?” and “On what planet do you reside? Social Security will always be around.” Only the instructor’s quick intervention, changing the subject, saved me from absolute visual ridicule.

Of course, I didn’t account for at least one FICA tax increase and the general population growth. Not publicly discussed until the 1990’s, the government now predicts insolvency around 2035.

I don’t expect a Nobel nomination for economics. I offer it as an example to show you that you too can be prescient; all you have to do is to read the signs. Red sky in the morning…

What does this have to do with Ridgeology? Read the signs. The morning sky is crimson.

More than 40 Daubert hearings have been documented to date. Recently, Pat Wertheim recounted the defense strategy of demanding a Daubert hearing in an effort to keep evidence of past crimes out of a sentencing hearing by challenging the validity of 10 print-to-10 print idents. Only the aggressive, proactive actions of the prosecutor caused the defense to abort their strategy in the middle of the proceedings. As Pat observed,

I have a sneaky suspicion that had the prosecutor not stood her ground and insisted on a separate qualified Daubert witness in a separate hearing, the defense would have indeed made a big issue out of it. But by playing her cards the way she did, the prosecutor forced the defense to either run the bluff or fold her hand. [Detail # 112, www.clpex.com ]

I have written previously,

To date, not one Daubert challenge of fingerprints has been successful. But, I submit, this is not because of Divine Right but rather that the arguments have not yet sufficiently evolved and a similarly minded judge/panel has not yet heard them. [Are You Dead?, JFI, 53:1]

Red sky in the morning…

Get ready to put on your looks of incredulity, distain, and ridicule. Being a slow learner, I’m about to have another “Marriage and Family” moment. At the absolute limit, it will be no more than three years before a full-blown Daubert-style hearing is held in this state. And I think that is wildly optimistic. A credible “home grown” attack could occur in as  little as 3 to 6 months. If an outside consultant is retained, it could happen tomorrow—as you have probably heard, attorneys go to continuing education courses, too, and learn about the Mitchell case. Perhaps is has already happened and I’m not aware of it. We may be a Frye state and it may not be called a Daubert hearing, but taking the stand will create enough openings to allow opposing counsel to “Daubertize” you.

And why shouldn’t it happen?

…challenges will [only] increase in frequency, complexity, and sophistication. The stakes are too high for opposing counsel: “Someone stole my hands” is not an adequate defense. If the fingerprint idents go away, the case goes away. … [Ibid]

Are you ready? Tempestuous seas are brewing. They will require advanced planning and action—and charting a careful course, lest you end up on the shoals breaking apart.

There are a number of probable consequences that result from the coming storm:

Some Identification units might close down if they are discredited. If courts routinely reject testimony, the DA will not be motivated to enter the regatta if (s)he must bail water from a leaky boat that is usually disqualified or finishes last.

Kasey Wertheim observed,

Daubert concepts are being addressed during voir dire, before the evidence in the case is even admitted. In this situation, you are being cross-examined on your qualifications, and if you can't articulate the fundamentals of your “alleged” science, as it would be put, then you run a great risk of embarrassment, and possibly the exclusion of your testimony of opinion in the case. Defense attorneys have recognized the potential for a successful attack, and the attack surrounds the Daubert concepts. [Detail # 54, www.clpex.com ]

2) The overhead involved in maintaining a latent unit will dramatically increase for some and will increase for almost everyone else. Since this requires money, administrators will need to clearly see the off-setting benefits for the costs incurred—or they might consider closing the unit. Every aspect will be involved, not just examination requirements: proficiency testing, validation, documentation and more.

Speaking of documentation, a tactic advocated at this year’s Wisconsin State Public Defenders Conference is to demand the latent examiner’s notes as part of discovery. If you respond by thinking, “OK, I just won’t take notes then,” that idea is an absolute non-starter. And if your notes are fragmentary you’ll be not much better off. How do you think a traffic reconstruction expert would fare in court with the following notes: “5th and Main. Skid marks. Windshield broken. Passenger dead. Driver charged. No sketches.” As objectively as you can, look at your notes; do they share more in common with the above example than not?

Court preparation will have to increase, at least for several years while the initial burst of challenges occur. Most of you probably don’t remember policing in the 1970’s—some of you don’t even remember the 70’s. But it was a time when practically every case that was going “all the way” included a chain-of-custody hearing. Chain had been recently highlighted in court decisions as a soft underbelly of policing. [And, pragmatically, why not? Until that time, it had not been a serious issue in court and therefore probably not considered worthy of the scarce resources needed to reform policies and procedures.] When it became evident that departments were complying with judicial standards, the furor died down. So, I believe will be challenges to friction ridge impressions.

President Harry Truman said, “If you can’t stand the heat, get out of the kitchen.” Once you assume the mantle of latent print examiner, you’d better be prepared to defend the theory and practice of the science. Some attempt to bifurcate the practitioner from the science, suggesting that the examiner can be discredited without harm to the science. But when you are on the stand you are the science. The court will evaluate the reliability of the science based on your testimony.

What, if anything, can be done?

Globally, we need scholars to defend and extend understanding of the science.  Chemistry, statistics, genetics, physiology of friction ridge development, and forensic science are all needed. Like it or not, alphabet soup equals credibility. The need is not necessarily local; around the country there might be a handful of persons with Ph.D.s, educated in their specialty and also committed to friction skin identification. They would be the academic face of the science, filling in gaps in knowledge and responding to intellectual and legal challenges. I’m not suggesting simply accumulating degrees and degreed representatives for their own sake.  Education broadens and deepens knowledge and understanding; it sharpens intellectual nimbleness, enhancing the ability to wrestle with intellectual problems, to propose solutions, test them, and to articulate the result.

Globally, the NIJ grant to study fingerprint probability needs to happen soon. A complex, multi-variable model is required in order to move closer to accurate statistical calculations. I do not expect the upcoming study to entirely achieve that goal, but we need to move incrementally closer.

We must require adequate background and training for those entering the field. This includes both academic preparation and a meaningful training curriculum with enforced examination standards. The days of casual, almost accidental entry into an Ident position are drawing to a close. Some who might prove to be extremely gifted “technicians” may be excluded, but it is the emerging reality.

Locally, we need to demonstrate—and be able to articulate—the reliability of our methods and techniques, and our use of them. Have you adopted SWGFAST guidelines? They will be criticized and ridiculed by opposing counsel (that’s their job, in an effort to prevail in the argument whether objectively true or not). But the confident, competent defense of your practice and the theory of identification will go a long way to answering the challenges and correcting the record.

Finally I believe that to achieve excellence, each person needs to develop a commitment, a professional, personal passion. We must improve individually in our understanding and defense of the history, the concepts, and the emerging issues of the science. Are you just a technician who follows a predetermined formula by rote without deeper understanding? Or are you a practitioner of an applied science, a forensic scientist/latent print examiner with all that title implies, ready for the rough-and-tumble of the adversarial process? 

This probably will not occur strictly on the boss’ dime. If you think you should be paid every time you open (much less buy) a book or serve in a professional capacity, perhaps you should consider whether this is really where you want to be.  If you are not willing to take some degree of personal responsibility for your professional development you are leaving yourself exposed to the storms ahead.  The 2003 Wisconsin State Public Defender’s conference mantra, articulated to hundreds of attorneys over and over again was, “Be prepared, be prepared, BE PREPARED” when it comes to the “expert” [note sarcasm]. We must, likewise, be prepared or we will fulfill the caricature that has been painted and prove to be the “expert” they claim that we are.

That it keeps one out of the weather and beats writing tickets or working as a greeter at a mega-mart is not sufficient justification for continuing in the field.

None of this will be easy.

But I didn’t say it would be easy, just mandatory.

The sky is red. Is it morning or night on your ship of state?

John P. Nielson


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

Have a GREAT week!