Last week
Mark Beck brought us an article on LiveScan / AFIS.

This week
it is my pleasure to report on an excellent Ridgeology course in South Africa, and pass on some information being looked at for the future.  As you may know, South Africa is one of many countries who still operate under a numeric standard.  However, they realize that an evaluation of this must take place very soon, and they are taking active measures to review the holistic non-numeric approach to fingerprint identification and begin to incorporate the process and methodology into their departments.  Over the course of the week, all 9 Provincial Commanders (whose presence together was a groundbreaking event in and of itself) met together and discussed Ridgeology concepts (as listed on the RSW page of the Training section of CLPEX) and Daubert related subjects.  The timeliness of the subject was evident as a document was circulated on Wednesday regarding Daubert concepts in South Africa.  This week's Detail will outline the subject matter contained within the document.
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National Prosecutors Association (NPA) African Unit for Expert Evidence and Forensic Skills
by Dr. Lirieka Meintjes-van der Walt

summary by Kasey Wertheim

The ever changing fields in which expert evidence can be proffered, challenge both lawyers and judges.  Specifically in the case of criminal courts where guilt must be proved beyond a reasonable doubt, prosecutors need to have the wherewithal with wihch to present, cross-examine, and argue on matters that require the introduction of an expert to the dispute.  The objective of this report and the subsequent manuals is not to train prosecutors as scientists but to empower them to become informed users of science.  Both the report and the manual are formulated with this goal in mind.  The report and subsequent manuals are designed and organized to acquaint prosecutors with knowledge of scientific methodology which can be used in respect of all expert evidence.  Certain scientific fields are dealt with in particular, which may present particular problems.

In the full document, the first four chapters of this document provide an overview of the law within which science must be integrated and are devoted to general topics of law or science and serve to introduce issues that recur during the pre-trial and trial processes of criminal proceedings.  the remaining chapters are dedicated to specific kinds of scientific evidence.  A dual approach is followed: Both the legal relevance of the particular field of expertise as well as the state of the science underlying the expert testimony are discussed.

1. The cardinal duty of the expert is to the court.
2. The increasing trend toward forensics demands much more of prosecutors
3. The importance of knowing and understanding potential problems is essential
4. Problems inherent in expert evidence include:
    a. Assistance to the court

        i. new developments in technology

        ii. new procedures and processes

    b. The certainty paradox

        i. the perception that science is not certain

        ii. tension in a quest for truth involving uncertainty

    c. Prosecutors educating decision-makers

        i. experts are sought because of expertise otherwise lacking

        ii. the tribunal is naturally in a weak position to evaluate whether it is genuine or lacking

    d. Adversarial message distortion

        i. prosecutors need training on basic scientific methodology and statistics

        ii. prosecutors need to consider ways to minimize this problem

            1. pre-trial conferences

            2. expert registration / certification

            3. expert code of ethics

    e. Inadequate lawyering skills

        i. lawyers may require assistance of experts to clarify and advise them on scientific evidence

        ii. manuals may need to be generated dealing with forensic skills and expertise

    f. Disclosure by trial or ambush?

        i. possible defense disclosure regarding expert evidence at the pre-trial stage

    g. Admissibility

        i. admit relevant evidence

        ii. exclude irrelevant or invalid evidence or so-called expertise

        iii be aware of developments of the Anglo-American world, namely Daubert concepts

    h. The quest for reliable and valid testimony

        i.  How Daubert can assist in evaluating the scientific method applied to expert evidence

        ii. Expert evidence should be "audited" against the Daubert factors

        iii. scientists and prosecutors should liaise to determine strategies to improve reliability / validity

    i. The impact of lab procedures on evidence quality... problems include:
        i. sample / trace contamination   
        ii. unlawful sample collection
        iii. deliberate misrepresentation of results
        iv. fabrication of results
        v. deceptive misreporting of results
        vi. honest but erroneous interpretation of results
        vii. biased interpretation of results
        viii. disinclination to disclose results favorable to the other party
        ix. inadequately qualifying examiner
        x. inadequately validated procedures and protocols
        xi. improper preparation of laboratory reports
        xii. insufficient documentation of results
    j. Quality control and assurance
        i. international standards and methods should be evaluated and applied
    k. Computer forensic expertise

        i. needs to be sought and testimony allowed

**skip to 8.1 - Fingerprinting
Intro: discussion of Daubert and factors, Kumho
Relation to New Zealand and Australia, England and Wales
In South Africa, it can bear significantly upon the weight of the evidence
Forensic science in light of Daubert: 2 categories (Saks)
    1. normal applications of basic science (categorical or quantification)
    2. individuation or identification science
Forensic science grew up in the law and there is conflict:

    1. The aim of science is to reveal truth -
    2. The aim of law is to achieve justice (Faigman)
After courts accepted fingerprints, other forensic fields "jumped on the bandwagon" (Saks)

Daubert affects the reliability and validity of traditional forensic science
    Is there uniformity or objective standards?

    It is argued that nobody has ever proved the law of biological uniqueness
    Latent print examiners insist on absolute identifications
    Daubert pointed out that there are no certainties in science
    Probabilities are what we have left to work with and if they were objective, they would prove useful. However, forensic scientist employ them in a subjective manner and have not collected date or made calculations of empirically based probabilities. (Saks)
 

Light is now beginning to dawn on the judiciary and it is doubtful as to whether appeals to common sense (biological uniqueness) will continue to satisfy the reliability factor, especially since the landmark decision in Daubert.  Prosecutors can avoid appeal to intuition arguments by ensuring that their experts have more concrete, scientific proof to establish reliability and validity.

While the profession explains mistakes as human error or incomplete submissions, they often sacrifice the examiner for the sake of infallibility of the profession.  In the courtroom, it is justice and not the infallibility of the profession that matters.

The remainder of the document reviews additional Daubert-related concepts and fundamental concepts of the fingerprint discipline.

Even nearly half-way around the world, fingerprint examination is being scrutinized as it relates to the legal system.  The revolution we are seeing unfold around the 100 year anniversary of fingerprints is truly one of worldwide implication.  The result will be a more scientific discipline this century that uses terms, methods, processes, and procedures that on average, better conform to practices of good science than the previous century.
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