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Monday, September 19, 2005

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

Case Takes on Fingerprinting   LOWELL SUN, MA  - Sept 18, 2005 ...fingerprinting is coming under assault in the state's highest court, with lawyers arguing that the practice is both unreliable and unscientific...

Finger Points to Crime NEW YORK DAILY NEWS, NY - Sept 18, 2005 ...fingerprint identification systems began revolutionizing the way police search for suspects in the early 1990s...

Study: Fingerprinting is Not Infallible ALL HEADLINE NEWS  - Sept 13, 2005 ...while forensic scientists have long claimed fingerprint evidence is infallible, University of California-Irvine criminologist Simon Cole disagrees...

'CSI Effect' To Be Discussed At Law, Science Conference   TAMPA TRIBUNE, FL - Sept 12, 2005 ...the impact of the CSI Effect is among the topics that will be debated at the National Conference on Science, Technology and the Law...

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Confirmation Bias Study on Experienced Examiners
L.J.Steele Sat Sep 17, 2005 6:33 pm

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1L.J.S. Wed Sep 14, 2005 9:30 pm

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No major updates on the site this week.


Last week

Steve Ostrowski brought us an update on the Patterson Daubert hearing being held in Massachusetts.

This week

Pat Wertheim brings us an update on a recent Daubert-style challenge in San Diego County, California.

Report on an Evidence Admisibility Hearing
CN 167405 P v Pena, San Diego County, CA, August 25, 2005
by Pat Wertheim

Kelly-Frye rules (general acceptance) apply for introduction of scientific expert testimony in states that do not use Federal Rules of Evidence for state courts. However, since the introduction of Daubert in the early 1990’s, some non-Daubert states have seen cases of Daubert-styled motions filed as Frye or Kelly-Frye motions to exclude evidence under thinly disguised Daubert criteria. This has been especially true in fingerprints since the Daubert hearing in Federal Court in the Mitchell case in Philadelphia in July, 1999.

One such motion to exclude fingerprint evidence was argued recently in the case of Jaime Isla Pena, charged with murder in San Diego County, California. In that case, two palm prints from a homicide scene were identified to Pena by examiners at the San Diego County Sheriff’s Crime Laboratory. One of the palm prints was left in blood identified by DNA as the victim’s blood. The motion to exclude the palm print evidence alleged that palm print identification does not have general acceptance in the scientific community. The motion went on to list all of the other defense complaints generally used against fingerprint evidence in Daubert motions, especially focusing on reliability and error rate issues.

An evidentiary hearing was scheduled for August 25 and while not technically called a Daubert hearing, for all practical purposes that is what it was. The defense disclosed Dr. Simon Cole as their witness. I received a phone call from Myrna Lerma, a fingerprint examiner for the San Diego Sheriff’s Department, asking if I could help them prepare for the hearing. After discussions between Myna, Karl Eppel (the prosecutor), and myself, I agreed to appear as an expert for the prosecution at the hearing.

The following report was prepared from my notes of that hearing. Statements attributed to persons and placed in quotation marks might more correctly be characterized as paraphrasing. This was done as best I was able based on my notes and on reviewing the tapes of the hearing. No claim is made that these quotes are accurate in exact wording. I have tried to be as accurate as possible in wording and have tried scrupulously to be accurate in meaning.

The hearing was held as scheduled on August 25. The defense read its motion and called Dr. Simon Cole to the stand as its witness. Dr. Cole stated his credentials and immediately distanced himself from the initial allegation in the motion by stating that he does not generally distinguish between fingerprints and palm prints. He went a step further by declaring that he accepted the premise of uniqueness of even small areas of friction skin whether on the fingers or palms. It was apparent from the outset that although Dr. Cole is no friend of the science of fingerprint identification, he was not going to slant his answers to suit the defense or to satisfy the motion to exclude the palm print evidence, but was going to state his honest opinions and beliefs regardless of what the defense attorney might be trying to get him to say.

Dr. Cole was well versed in the terminology of fingerprint identification and conscientiously used terms such as “friction ridge skin” and “individualization.” He did a very good job of explaining the distinction between “identification” and “individualization,” then used the latter throughout his testimony better than I did. At one point when the defense attorney asked how many points two people can “share,” Dr. Cole quickly corrected the attorney in stating that people cannot “share” friction ridge details. He very obviously stays current on articles in the field and stays up to date on discussions on the websites. I dare say that he is better versed in that regard than many active fingerprint examiners I know.

Dr. Cole got into the meat of his testimony by stating that “fingerprint identification is just another pattern recognition task.” In support of that belief, he relied on the research of psychologists who have studied pattern recognition and eyewitness identifications. He provided names like Professor Michael Saks, Dr. David Stoney, Professor James Starrs, Dr.’s Ralph and Lynn Haber, and others as the basis for his belief.

The main gist of Dr. Cole’s testimony came early in response to the question, “How do we know a latent print examiner can validly identify a latent print to a known?” Dr. Cole’s answer was, “Well, we don’t. We don’t have any studies that show us latent print examiners can validly identify latent prints. We don’t know how accurate they are, how often they are correct, and how often they are not. Unless we know the accuracy rate, we don’t know what significance to attach to it.”

Dr. Cole then compared fingerprint identification to hair analysis and to DNA analysis by discussing the reliability studies and estimated error rates of those disciplines, placing fingerprint identification closer to hair analysis than to DNA. He discussed the three levels of comparison but emphasized that there are no standards or “no established amount of detail needed. No analogous ‘random match probabilities,’ as in DNA.” There are no studies showing how much detail is needed or how often latent print examiners are wrong.

Similarly, Dr. Cole attacked the ACE-V methodology (Analysis of the latent or unknown print, followed by Comparison with the inked or known print, followed by Evaluation of the two to determine if there are sufficient details for individualization, followed by Verification by a second examiner). He charged that there are “no studies to show it gives the right conclusion some acceptable amount of the time.”

The defense then took the questioning in the direction of error rate to show that it might be unacceptably high. Of course, that brought Dr. Cole into testimony about proficiency tests and errors that have been reported by Collaborative Testing Services (CTS). Dr. Cole was careful to stress that proficiency tests are not validity tests and he carefully differentiated between the two. Still, he implied that error rates reported by CTS of between 0.0% and 4.5% support his allegation that the error rate of fingerprint identification might be unacceptably high. He went on to testify that there are no studies showing how often a second examiner fails to verify a latent print identification, implying that a failure to verify indicates an erroneous identification.

Dr. Cole then directed his testimony into material from his most recent article, “More than Zero: Accounting for Error in Latent Fingerprint Identification,” which appears in The Journal of Criminal Law and Criminology, spring 2005 (volume 95, issue 3). In this phase of his testimony, Dr. Cole discussed publicized cases of erroneous fingerprint identifications, going into most detail on the recent case of Brandon Mayfield’s arrest by the FBI based on an erroneous fingerprint identification. He also went into some detail in the cases of Shirley McKie, David Asbury, and Stephen Cowans. Dr. Cole said these are just the tip of the iceberg and we cannot tell how many other cases there are because exposure of such cases is only “happenstance.” There is no set way to go about searching for other cases.

The defense asked if there are scientists who say that latent print identification is reliable and Dr. Cole named Andre Moennsens. Then the defense asked if there are other scientists who say no, and Dr. Cole read a list of eighteen names, people who had signed an amicus brief in the Patterson case in Massachusetts. Dr. Cole excluded fingerprint examiners from the “relevant scientific community” in assessing the accuracy or reliability of latent print identification. He defined that “relevant scientific community” as “those who know how to conduct validity studies, what a validity study is, what validity is.” (The prosecution returned to this point in cross examination, as related below.)

During his testimony, Dr. Cole characterized a “split” in the fingerprint community over “point counting” as a methodology in contradiction to ACE-V. The implication of this area of testimony seemed to be that there is a major ongoing battle between proponents of two opposing methodologies. It seemed to me the further implication was that there were roughly equal numbers of fingerprint examiners on each side of this alleged conflict. I believe the point in this was to try and show that there is no accepted methodology, even among fingerprint examiners.

The defense closed the direct questioning of Dr. Cole with the question of “whether there is a difference between uniqueness and reliability?” Dr. Cole answered, “Yes. The uniqueness of friction ridge skins is necessary but not sufficient to establish the reliability of individualization. To draw an analogy, I don’t think that two people have the same faces. Even identical twins are not exactly alike. But I don’t think that eyewitness identification is 100% reliable, or even that it’s reliable at all. There are no studies in friction ridge skin individualization, but there are studies in eyewitness identification.”

For the cross examination of Dr. Cole, the prosecutor began with uniqueness and elicited testimony that, “yes, all friction ridge skin is equally unique – fingerprints, palms, soles, and toes.”

Asked if fingerprint identification couldn’t be done accurately, Dr. Cole responded “Latent print individualization can be done accurately, it can be done inaccurately, and it can be completely wrong.” He accepted that it may be a reasonable or common sense assumption that latent print examiner qualifications and experience are factors and that the size and quality of the latent print itself are factors, but “these are assumptions that have not been studied or validated.”

Then the prosecutor went to the issue of the relevant scientific community and asked Dr. Cole what “relevant scientific community” he was referring to. Dr. Cole replied, “The relevant scientific community for assessing whether the reliability of individualization has been validated.” The prosecutor asked “who is that relevant scientific community?” and pressed for specific names. The prosecutor asked if the list of 18 names read earlier from the amicus brief in the Patterson case made up that “relevant scientific community?” Dr. Cole responded that those 18 are “the majority of people who have studied the issue.” Pressed further, he also testified that the “tens of thousands” of latent print examiners are NOT part of the “relevant scientific community” as he defined it, nor are the members of SWGFAST.

The judge then questioned Dr. Cole from the bench. First, he asked if there are validity studies regarding hair comparison. Dr. Cole replied, “Yes, pretty weak studies, pretty heavily criticized.” But they do point up a serious error rate, much of it discovered through subsequent mitochondrial DNA. The judge then asked, “Are there studies of the reliability of latent print examination similar to the studies of the reliability of eyewitnesses?” Dr. Cole discussed psychologists’ studies of reliability of eyewitness identification and repeated that no such studies have been done for fingerprints.

The prosecutor then cross-examined Dr. Cole with one more series of questions:
Q: “Is it your opinion then that fingerprint evidence should not be admitted in court at all?”
A: “Well, that’s a legal question. It’s my opinion that it does not meet the admissibility standard set forth under Daubert, under Frye, or under Kelly-Frye. So my opinion is it does not meet the admissibility standard.”
Q: “So it should not be admitted in court at all?”
A: “It should not be admitted in court as it currently stands.”
Q: “Simple question, yes or no, we should introduce fingerprint evidence or not.”
(Dr. Cole struggles for words. Defense attorney: “Objection.” Judge: “Sustained. You don’t have to answer yes or no. You can explain as much as you need.”)
A: “As the evidence is currently constituted, it should not be admissible in court.”

With that, the defense rested and Dr. Cole was excused. I was called by the prosecution to provide rebuttal to the testimony given by Dr. Cole.

After my qualifications, I began my testimony by stating my belief that ACE-V is not a new methodology at all, but that the acronym itself has not been in use that long. I referred to articles from the 1940’s setting out the foundation of “ridgeology” but acknowledged that even the term “ridgeology” wasn’t around then. But I supported my assertion by saying that the human brain works the same today as it did in the early twentieth century. The mental process is the same but we are always looking for a better way of articulating what we do.

I discussed “point counting” from a historical perspective dating back to Galton. I explained that statistical studies provide support for uniqueness, just as the biological research provides that support. I pointed out that while some state agencies still have point minimums on the books, those agencies also allow for exceptions to the minimums with higher degrees of verification, so that the point minimums are not true minimums but rather quality control measures to assure accurate identifications through enhanced verification.

I readily endorsed the type of validation studies Dr. Cole says are needed, but pointed out that in all scientific disciplines research is an ongoing process to refine science. I added, “You never reach a state of perfection where you can quit doing studies into your science.” But the mere fact that more research is being done or should be done does not automatically invalidate any science as it is currently being practiced.

I then testified about policies and procedures for dealing with latent print examiners who are found to have made erroneous identifications. I also discussed IAI Resolution VII of 1973 and testified that there is no such major split in the community of fingerprint examiners as implied by Dr. Cole’s testimony. I pointed out that people who might be characterized as “point counters,” such as Dusty Clark and Christophe Champod are included in the SWGFAST membership and support the guidelines adopted by SWGFAST.

I testified that although errors are made in fingerprint identification, “in any field of human endeavor, there exists the potential for human error,” and the fact that errors are made does not shake my confidence in the reliability of fingerprint identification.

Under cross examination by the defense attorney, I testified to my personal experience in teaching over 80 classes in comparison techniques with 1500 to 2000 students that erroneous identifications are rare, although I admitted I had never calculated an error rate nor published my findings. I mentioned that studies of the kinds suggested by Dr. Cole are underway, but admitted that none of these studies have been completed, peer reviewed, or published yet.

The defense also questioned me on “confirmation bias,” which I explained is a very real concern. I explained that awareness of the problem is the first step in avoiding its pitfalls, but I don’t know how to eliminate it.

The defense attorney asked me if I didn’t think fingerprint examiners should tell the jury about errors and the potential for mistakes. I answered that of course they should, but that it was his job to bring that out by asking those questions at trial.

On redirect, the prosecutor asked me about the studies I had testified to on cross-examination. I went into a little detail on the preliminary results of the error rate study presented at the IAI conference in Dallas by Glenn Langenburg and Kasey Wertheim, which showed a 0.034% error rate on training exercises. But I stressed the limitations of that study and the inappropriateness of applying it to case work.

The prosecutor then questioned me about “abandonment” of the “point standard.” I replied that “it’s not an issue of people in gray uniforms and people in blue uniforms fighting a civil war for control here. The whole issue of points, now, in today’s environment, since I’ve been in this business, is to validate statistically what we conclude biologically as far as uniqueness.”

The prosecutor and defense attorneys then engaged in re-cross, re-re-direct, re-re-cross, etc., swapping questions one by one with me. At one point, the defense attorney commented, “So you’re saying we shouldn’t just ‘throw the baby out with the bath water’?” – “Exactly!” I responded.

After I was excused, the attorneys gave their closing arguments. The defense stated basically that uniqueness of friction ridge skin is not at issue, “it’s the reliability of the identification” that cannot be proven. The prosecution responded that the challenges “are spurious, made by a historian/social scientist, not by someone within the scientific community.”

After a brief recess, the judge returned with his ruling. He said that he saw the arguments as basically encompassing two issues. First, is Kelly applicable? And second, the question of reliability. He pointed out that fingerprint comparison/identification does not rely on “the same data collection process as DNA” and referred to the struggle with multiple variables in latent print data collection.

The judge then surprised both the prosecutor and me with the comment, “I think this really is sort of akin to eyewitness ID. This is not a truly scientific comparison, but is akin to tool marks and bite marks. But the variables in reliability don’t render it inadmissible, all those things that are comparative analysis as opposed to a truly scientific analysis. There is science to this, but the analysis is not as scientific. It’s visual.” He went on to say that he didn’t think Kelly really applies.

The judge closed by addressing the defense attorney. “I’m going to deny the request to exclude. I think, as Mr. Wertheim said, all you really need to do is ask the questions about there are, in fact, errors, variables, error rate. Those are all fair game for cross examination. And there you are.”

So we (the prosecutor and I) consider it a victory. The palm print identifications will be admissible at trial just as they would have been before this motion and hearing. The trial itself begins around the end of October and the palm print identifications are anticipated to be presented during the second week of November. It would appear the defense attorney and prosecutor both have had a good practice run at the type of questioning that will dominate the fingerprint testimony during the trial.

And I might add that Dr. Cole and I have had a good practice run for our upcoming debate at the New England Division IAI conference the first week of November. Hope to see you there!


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