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Monday, March 22, 2004

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 UzE...
compiled by Jon Stimac

Body Wash Bottle Leads to Arrest - THE TENNESSEAN, TN - Mar 21, 2004 ...a  bottle on the ledge inside a bathroom window was a burglary suspect's downfall...

Old Police Technique Enters Digital Age - ALBERTA DAILY HERALD TRIBUNE, CANADA - Mar 18, 2004 ...a cutting-edge gadget cuts the time-consuming - and often messy - job of fingerprinting suspects down to just minutes...

FBI to Solve Delays in Fingerprint System - SIGN ON SAN DIEGO, CA - Mar 17, 2004 ...FBI is working to overcome obstacles that could delay integration of fingerprint systems with the Border Patrol until 2008...

Trial Cites Grisly Fingerprint Procedure - DENVER POST, CO - Mar 16, 2004 ...testimony about the fingerprinting, done in a crime lab, came at the end of a day of evidentiary testimony in the murder trial...


Last week, we read another article by Simon Cole that seemed to direct attack more toward practitioners and less toward the science.  Although many of his arguments are evolving, we saw excellent discussion on the message board regarding his position.  One of the issues that arose dealt with the introduction of biased into the identification process.  Several posts detail the fact that if an identification decision is weighted due to outside factors, then the ACE-V process was not followed and the opinion falls outside one of science.  One of the references cited in the posts deals with expectation and suggestion in forensic science; it was authored by critics of questioned document analysis.  This is another of those articles which are healthy to read; but portions must be taken with a grain of salt.  Below I have posted the summary and introduction to the article, and it has been placed on the Reference page in its entirety.


The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion
by Michael Risinger +, Michael J. Saks ++, William C. Thompson ++, and Robert Rosenthal ++ ++

 + Professor of Law, Seton Hall University School of Law, B.A., Yale University, 1966, J.D., Harvard University, 1969.

 ++ Professor of Law and Professor of Psychology, Arizona State University, B.A., B.S., Pennsylvania State University, 1969, M.A., Ohio State University, 1972, Ph.D., Ohio State University, 1975, M.S.L., Yale University, 1989.

 ++ Professor, Department of Criminology, Law and Society, University of California at Irvine, J.D., University of California at Berkeley, 1982, Ph.D., Stanford University, 1984.

 ++ ++ Distinguished Professor of Psychology, University of California at Riverside, and Edgar Pierce Professor of Psychology, Emeritus, Harvard University, Ph.D., U.C.L.A., 1956. 

Copyright (c) 2002 California Law Review
California Law Review
January, 2002
90 Calif. L. Rev. 1

LENGTH: 26899 words [summary and introduction reproduced here]


 ...  And the constellation of expertise is "forensic science" in general, and especially those forensic science practices utilizing subjective human judgment as their primary instrumentality, and not based on techniques derived from normal science methodology. ...  Such exercises may precipitate a change in focus leading to the discovery of more dependable information that was previously overlooked, even if the exercise is itself without rational content. ...  A forensic scientist is not a detective. ...  The Whitehurst affair is merely a manifestation of the leavening of the traditional forensic science laboratory culture with personnel seriously trained in the methods of academic science, who come to their new jobs primarily for the science and less for the law enforcement satisfactions involved. ... In brief, for forensic science examiners, a properly constructed evidence lineup would accomplish at least the following. ...  The goal of the Justice Department in promulgating its eyewitness guidelines, namely, reducing the incidence of false positive errors without reducing the incidence of true positive identifications, can be achieved equally well for forensic science. ... " However, the weight of the research and the condition of normal forensic science practice render such a response so irrational that in the long run it cannot prevail over the responsibility to evaluate the reliability of such testimony pursuant to Daubert and Kumho Tire.

One must not equate ignorance of error with the lack of error. The lack of demonstration of error in certain fields of inquiry often derives from the nonexistence of methodological research into the problem and merely denotes a less advanced stage of that profession. n1

This is a criminal investigation, sir. You are asking about bias controls, which refers to research. n2



The Requirements of Kumho Tire Co. v. Carmichael

In Kumho Tire Co. v. Carmichael n3 the United States Supreme Court put forward two important principles for the control of expert evidence. The first is that the judge's gatekeeping responsibility to insure minimum reliability of expert testimony pursuant to Federal Rule of Evidence 702 n4 applies to all proffered expert testimony, not just the explicit products of "science." n5 The second, less explicit but no less important, is that this judgment must be made concerning the "task at hand," n6 instead of globally in regard to the average dependability of a broadly defined area of expertise. n7 In other words, reliability cannot be judged "as drafted," but must be judged only specifically "as applied." The Court repeatedly made this clear in Kumho Tire, n8 perhaps best when it said:

contrary to respondents' suggestion, the specific issue before the court was not the reasonableness in general of a tire expert's use of a visual and tactile inspection ... . Rather, it was the reasonableness of using such an approach, along with [the expert's] particular method of analyzing the data thereby obtained, to draw a conclusion regarding the particular matter to which the expert testimony was directly relevant ... . The relevant issue was whether the expert could reliably determine the cause of this tire's separation. n9

As the Court further stated, "Rule 702 grants the district court the discretionary authority ... to determine reliability in light of the particular facts and circumstances of the particular case." n10

As a result of Kumho Tire, courts will be called upon to develop criteria for the proper delineation of both the "task at hand" and the particular circumstances affecting its reliability. n11 The development of such criteria is not a trivial task, both because individual cases may present complicated situations, as Kumho Tire illustrates, and because not all considerations that may bear on the reliability of an expert assertion should be taken into account in a Rule 702 determination. n12 For example, it seems that at a minimum, expert veracity and sincerity are not proper Rule 702 factors and, for good or ill, are to be left to the evaluation of the trier of fact as they are in regard to fact witnesses. n13 In addition, it seems inappropriate for a court to exclude relevant and reliable expert testimony simply because the judge had concluded based on other evidence in the case that the expert was simply wrong. Beyond this, however, after Kumho Tire it appears both appropriate and necessary for the judge to consider any factor that could be shown to affect the reliability of an expert's testimony under the "particular circumstances of the particular case." n14 Because Kumho Tire obligates a trial court to make a reliability determination under Rule 702 where any proposed expert testimony's "factual basis, data, principles, methods, or their application are called sufficiently into question," n15 it would seem incumbent upon judges and lawyers to inform themselves concerning the status of knowledge bearing on such factors.

It is the aim of this Article to aid in this process. Specifically, we will show that there are certain factors which, when present, undermine to some degree the reliability of virtually any form of expertise. Further, we will show that the extent to which reliability is undermined depends not only on the presence of such factors, but on the characteristics of the expertise at issue, most particularly the degree to which it depends on subjective human judgment. Moreover, we will show that there is an entire established constellation of expertise, celebrated in popular culture and heretofore generally admissible, in which such factors form a rampant and uncontrolled part of normal practice. We will then put forward some practical proposals for reform of internal practice, and some suggestions about the proper legal response to an admissibility challenge under Rule 702.

The factors we refer to are primarily expectation and suggestion, which drive much of what is globally labeled "observer effects" in social psychology and research methodology. And the constellation of expertise  [*6]  is "forensic science" in general, and especially those forensic science practices utilizing subjective human judgment as their primary instrumentality, n16 and not based on techniques derived from normal science methodology. n17

I Observer Effects

A. Evolution of the Awareness of Observer Effects

An elementary principle of modern psychology is that the desires and expectations people possess influence their perceptions and interpretations of what they observe. In other words, the results of observation depend upon the state of the observer as well as the thing observed. This insight is not new; long before cognitive scientists began formally studying the psychological foundations of such effects, the phenomenon was noticed and commented upon. Julius Caesar, for instance, noted that "men generally believe quite freely that which they want to be true." n18

Sensitivity to the problems of observer effects has become integral to the modern scientific method. Soon after Renaissance natural philosophers began creating the scientific method, they began paying specific attention to the problem of observer effects. The writings of Sir Francis Bacon in 1620, for example, recognized the problem. Bacon suggested that "the human understanding, when any proposition has once been laid down ... forces everything else to add fresh support and confirmation; and although ... instances may exist to the contrary, yet [the understanding] either does not observe or despises them ... ." n19 Bacon also posited that "it is the peculiar and perpetual error of the human understanding to be more moved and excited by affirmatives than negatives, whereas it ought duly to be impartial; nay, in establishing any true axiom, the negative instance is the most powerful." n20 In the first passage, Bacon anticipated what modern  [*7]  research has shown to be the cognitive phenomenon of selective attention: the tendency of observers to seek out some information and avoid other information. n21 In both passages, Bacon anticipated what modern cognitive scientists refer to as confirmation bias, the tendency to test a hypothesis by looking for instances that confirm it rather than by searching for potentially falsifying instances, even though most scientists and philosophers of science today agree with Bacon that the best scientific method is to proceed by doing the latter. n22 Bacon adds that "the human understanding resembles not a dry light, but admits a tincture of the will and passions, which generate their own system accordingly, for man always believes more readily that which he prefers." n23 Like Caesar before him, Bacon took a step beyond cognition and raised the issue of motivational or attitudinal effects on what a person thinks he or she has observed.

[a list of observer effects is given and each is discussed at length; expectation, anchoring, role, conformity, experimenter, pervasiveness, desire and motivation, confidence, etc. The remainder of this article is available in the Reference library under "Legal Issues"]


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Don't allow 'reverse delegation'

Once you've assigned a task to an employee, don't allow yourself to be talked into relieving the person of their responsibility.  That can happen in the blink of an eye.


You allow yourself to be bottonholed in a hallway or the elevator.  The conversation begins "I think we have a problem."  The "we" implies that the person would like to bounce the task back to you.  If you're not careful, the problem will end up on your desk.

How should you handle this kind of situation?  Make sure that the next move belongs to the person to whom you have delegated the task.


Say "You're right.  There is a problem here.  What are your alternatives?  Give me a call tomorrow and tell me how you've decided to handle it.  I support you 100%."

-Adapted from Work Smart, Not Hard, George Sullivan, via Communication Briefings, December 2003, 800.722.9221,



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Have a GREAT week!