we look at part of a recent article by Simon Cole regarding latent print error, detailing misatribution and analysis of cases. Next week we will look at the rest of this article detailing "The Rehetoric of Error". The portion represented below is not complete, but rather represents portions of the first half of the 95 page article that would be most interesting to latent print examiners.

http://www.clpex.com/Articles/Cole-MoreThanZero.pdf

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Excerpts from "More Than Zero"
The Journal of Criminal Law & Criminology,
Vol 95, No. 3,
Author: Simon Cole

As with infallibility, latent print examiners defend the claim of a zero error rate even when confronted with known cases of misattribution in real cases.
How can a process commit errors and yet be considered infallible? How can the "error rate" of any technique, let alone one that has been known to commit errors, be considered zero? In this article, I will argue that the coexistence of these two contradictory notions is not merely a product of simple "doublethink." Rather. I will show that it the product of a rhetorical strategy to isolate, minimize, and otherwise dismiss all exposed cases of error as "special cases." or "one-offs," " and therefore as irrelevant.

After a brief legal and technical background discussion in Part I, PartII of this paper discusses what we do know about the error rate of latent print identification. Part II.A catalogs twenty-two cases of fingerprint misattribution that have been reported in the public record. An analysis of these eases shows that they are most likely only the tip of the proverbial iceberg of actual cases of fingerprint misattribution. Part II.B discusses the results of proficiency testing of latent print examiners. These tests also show a non-zero error rate. In Part III, I discuss what might be called "the rhetoric of error." This Part analyzes rhetorical efforts by fingerprint advocates and courts to minimize, dismiss, and explain away the evidence of error revealed in Part 11. Fingerprint practitioners seek to create an error-free aura around fingerprint identification that has the potential to dangerously mislead finders of fact. At the end of Part III, I discuss some more defensible ways of conceptualizing fingerprint error. Far from being "one-offs," I suggest that the cases of error are more likely the product of routine practice. Whatever special circumstances exist in the misattribution cases are more likely to account for the exposure of the misattribution than the misattribution itself. I conclude by arguing that it is necessary to confront, analyze, and understand error if we ever hope to reduce it.

Latent print examiners reach conclusions of "individualization" by finding corresponding "ridge characteristics" between the unknown and known prints. Any "unexplainable dissimilarity" results in a conclusion of exclusion." Insufficient correspondences result in a conclusion of "inconclusive." "Sufficient" correspondences result in a conclusion of "individualization," or source attribution. A crucial question is, of course, where the boundary lies between insufficient and sufficient correspondences. The latent print community has been unable to answer this question with any precision or consistency other than to posit a circular answer, which simply rests upon the analyst's subjective measure of "sufficiency," such as the following: "Sufficiency is the examiner's determination that adequate unique details of the friction skin source area are revealed in the impression."

II. What Do We Know About Error Rates in Latent Print Identification?

Known cases of fingerprint misattribution [case selection for this study was false positives that are reported outside the laboratory]

a. Loomis
Robert Loomis was convicted in 1920 for the murder of Bertha Myers during a burglary in 1918 in Easton, Pennsylvania. Two latent print experts testified for the government that a latent print found on a jewelry box could be identified to Loomis. Loomis won a new trial on the basis of faulty jury instructions. At Loomis's second trial, the government admitted that Loomis was not the source of the latent print and declined to offer it into evidence. The record does not show what led the government to this conclusion. Loomis then sought to enter the print into evidence, claiming it belonged to the true perpetrator.

b. Stevens
A latent print found on a calling card at the scene of the notorious Hall-Mills murders in New Brunswick, New Jersey in 1926 was attributed to William Stevens by three latent print examiners. Interestingly, one of the examiners was Joseph Faurot, who had been one of the first examiners to offer testimony in court in the United States. Two latent print examiners testified for the defense and claimed the attribution was erroneous, but they also contended, inconsistently, that the print might have been forged. Stevens was acquitted; the jury reportedly disregarded the latent print evidence.

c. Stoppelli
John "The Bug" Stoppelli was convicted in 1948 for the sale of narcotics in Oakland. After a drug raid, in which four other suspects were arrested, a latent print was recovered from an envelope containing heroin. The print did not match any of the four arrested. After an extensive database search, Internal Revenue Agent W. Harold "Bucky" Greene attributed the latent to Stoppelli, a parolee in New York City. Greene found fourteen matching ridge characteristics. No other evidence linked Stoppelli to the crime.
Stoppelli was convicted. Eventually, his attorney, Jake Ehrlich, convinced the arresting officer. Colonel White, to talk to Stoppelli. White became convinced of Stoppelli's innocence and had the print reviewed by the FBI Laboratory. The FBI excluded Stoppelli as the source of the print, and President Truman commuted his sentence. He had served two years.

d. Caldwell
Roger Caldwell was convicted of the murder of Elisabeth Congdon in Minnesota in 1978. Three latent print examiners attributed a latent print found on an envelope to Roger Caldwell. The envelope was addressed to Caldwell and contained a gold coin believed to have been stolen from the victim's home. The examiners were: Steven Sedlacek, who testified for the government at trial, Claude Cook, who "verified" Sedlacek's identification, and Ronald Welbaum, who was retained by Caldwell and also corroborated the match. All three were IAI-Certified Latent Print Examiners. Sedlacek testified that "the latent print partial . . . I found to be identical with the inked impression on the fingerprint card bearing the name Roger Caldwell." This conclusion was based on eleven matching ridge characteristics and no unexplainable dissimilarities.
The original negative of the latent print was reexamined for the trial of Caldwell's wife and supposed co-conspirator, Marjorie Caldwell. The forensic scientist Herbert MacDonell and the latent print examiners George Bonebrake and Walter Rhodes testified that Roger Caldwell could not have been the source of the latent print. Marjorie Caldwell was acquitted, and Roger won a new trial. That the fingerprint evidence was erroneous does not necessarily exonerate the Caldwells, and Roger Caldwell eventually pled guilty to time served rather than submitting to a new trial. On the other hand, a guilty plea to time served is a difficult offer for even an innocent person to refuse and is, therefore, not particularly convincing evidence of caldwell's guilt. Sedlacek, Cook, and Welbaum had their certifications revoked by the IAI.

e. "Midwestern"
Special Agent German reports a case of erroneous identification reported by an examiner from "a small American police department in the Midwest" in 1984. The nature of the crime is not reported. The defendant was a parolee.  Testimony implicating the defendant based on latent print evidence was given at a preliminary hearing and parole revocation hearing. The latent print examiner was IAI-certified and was decertified upon exposure of the error. The defendant was released upon exposure of the misidentification. German reports that "[t]he Latent Print Examiner, being relatively new in the business, had not previously caused anyone's incarceration based upon fingerprint evidence and the Prosecutor decided that no future warrants would be issued based on just the local examiner's work." After decertification, the examiner continued to work as a police officer, crime scene technician, and, apparently, latent print examiner, since German reports that the examiner "to my knowledge has since always submitted fingerprint identifications to outside agencies for verification. German withholds the identifying details "because I am proud of his (and his department's) integrity and professionalism."

f. Cooper
Michael Cooper was arrested for being the "Prime Time Rapist," a serial rapist, in Tucson, Arizona in 1988. Two latent prints from two different crime scenes were attributed to Cooper by two law enforcement personnel: Timothy O'Sullivan and Gene P. Scott. While O'Sullivan apparently had minimal latent print experience, Scott was a Supervisor." The examiners claimed to have found "eleven or twelve" corresponding ridge characteristics between a crime scene print and an inked print taken from Cooper, and Scott called the match a positive comparison. On the basis of the fingerprint evidence, Cooper was subjected to an illegal interrogation, which the Ninth Circuit later decided violated his civil rights. During the interrogation, one investigator, Weaver Barkman, began to harbor doubts about Cooper's guilt, which he expressed outside the interrogation room. According to Barkman, his supervisor, Tom Taylor, "said something very close to fingerprints do not lie. Get your ass back in there, Weaver." Identification technician Mary McCall also participated in the interrogation, telling Cooper that he had been positively identified by fingerprint evidence. The record does not show whether or not McCall had yet examined the evidence herself Upon double-checking her work, however. McCall began to doubt the match. O'Sullivan and Scott initially "ignored her and declined to reexamine the exemplars." Eventually, however, the examiners changed their conclusion to one of exclusion. At the time, they maintained that there were twelve corresponding ridge characteristics but also some unexplainable dissimilarities, which rendered the comparison an exclusion. Scott and O'Sullivan were demoted, and McCall was suspended for two days without pay.

g. Trogden Cases
Bruce Basden was arrested in 1985 for the murders of Remus and Blanche Adams in Fayetteville, North Carolina. A latent print found in the Adams' home was attributed to Basden by latent print examiner John Trogden. Upon reexamining and enlarging the evidence in response to a discovery request by the defense, Trogden withdrew his conclusion of identification. The charges were dismissed. Basden had been jailed for thirteen months.
The FBI and the North Carolina State Bureau of Identification reviewed the work of Trogden and another latent print examiner named Sue George. Their review found three erroneous identifications. A latent print in a burglary case was attributed to Mauriee Gaining, who had been convicted of burglary and sentenced to ten years. The print apparently belonged to Gaining's co-defendant James Hammock. Other latent print evidence, reportedly correctly attributed, remained against Gaining in other pending burglary cases. Coincidentally. one of the other misattributed prints was attributed to Hammock in another burglary case for which he was sentenced to ten years. Again, there was additional print evidence, apparently correctly attributed, against Hammock. The third error was the attribution of a palm print to Darian Carter. Carter had been convicted of larceny and sentenced to ten years. Again, there were also two fingerprints, which had apparently been correctly attributed to Carter. Identification Bureau officials noted that the errors occurred "early in the identification careers" of Trogden and George, that the examiners "did not have [the] luxury" of "learn[ing] from more experienced people," and that they "had identified a record 118 fingerprints in 1987." Trogden and George remained on the job. Their supervisor commented, "I'm not going to throw them out because of a mistake. I think with additional experience and training, our print examiners will be the best in the state."

h. Lee
Neville Lee was arrested in 1991 in Nottinghamshire, England, for the rape of an eleven-year-old girl on the basis of a supposed fingerprint match. It is not known how many corresponding ridge characteristics were identified, but at that time a minimum requirement of sixteen matching ridge characteristics was in force in the United Kingdom. Lee's home was wrecked by vigilantes, and he was assaulted in jail. Another individual subsequently confessed to the crime, and Lee was released. The authorities admitted that the fingerprint match was erroneous.

i. Blake
Martin Blake was arrested and interrogated for three days in 1994 for the murder of seven people during a robbery in Palatine, Illinois. A Chicago Police Department latent print examiner matched a print from the crime scene, a Brown's Chicken & Pasta, to Blake. Upon review by the Illinois State Police and the FBI, the match was determined to be erroneous.

j . Chiory
Andrew Chiory was charged in 1996 for the burglary of the home of Miriam Stoppard, a writer and broadcaster who also happened to be the ex wife of the well-known playwright Tom Stoppard, in London, England. Two separate latent prints from the crime scene were attributed to Chiory. Both matches were "allegedly triple-checked," and both were conducted under the requirement for sixteen corresponding ridge characteristics in force in the United Kingdom at that time. Chiory served two months in prison before the match was exposed as erroneous. Despite an extensive external investigation of this miscarriage of justice, no explanation for the misidentification has ever been made public.

k. McNamee
Danny McNamee was convicted in England in 1987 of conspiracy to cause explosions." He was dubbed the "Hyde Park Bomber" for his alleged role in a 1982 Irish Republican Army bombing that killed four soldiers and seven horses. McNamee was implicated in the crime by three latent prints: two from tape found with explosive-making equipment, and one from a battery recovered from debris after a controlled explosion in London. The latent print from the battery was the most incriminating. At McNamee's trial. Metropolitan Police latent print examiners offered evidence that McNamee was the source of the latent print on the battery.
As McNamee appealed his conviction, controversy emerged over the battery print. At least fourteen different examiners analyzed the evidence. Two Glasgow examiners found eleven corresponding characteristics between the latent print and McNamee's inked prints, but they were not the same eleven characteristics. At least two Dorset examiners also attributed the print to McNamee, but did not agree with some of the corresponding ridge characteristics identified by the original examiners. Other experts, including Peter Swann and Martin Leadbetter, found the latent print insufficient for identification. The appeals court quashed the fingerprint evidence, the case collapsed, and McNamee was released in 1998 after serving eleven years in prison.

l. Scottish Criminal Records Office Cases
These were the best-known cases of fingerprint misidentification until the Mayfield case. The cases surrounded the murder of Marion Ross in Kilmamock, Scotland in 1997. David Asbury was identified as a suspect, in part, based on a latent print found on biscuit tin in his home containing a substantial amount of cash. The print was attributed to Marion Ross. Asbury was convicted of murder and sentenced to life in prison.
Shirley McKie, a detective with the Strathclyde Police Department, had been assigned to secure the crime scene. A latent print found inside Ross's house was attributed to McKie. (It is standard practice to "eliminate" latent prints by checking them against the known prints of non-suspects, such as victims and investigating police officers.) McKie denied entering the house. After resisting substantial pressure to admit having abandoned her post and entered the house, McKie was charged with perjury. Both the Ross and McKie fingerprint matches were attested to by four (the same four in both cases) latent print examiners from the Scottish Criminal Records Office (SCRO) and were described as meeting the British requirement of having at least sixteen corresponding ridge characteristics. However, unbeknownst to either prosecution or defense, five SCRO examiners had declined to attribute the disputed print to McKie. A clinical psychologist who examined McKie and formed the opinion that she was telling the truth was "told that any question of a mistake in the fingerprint evidence was "unthinkable because of its implications."
On the eve of McKie's trial, in 1999, she and her father Iain McKie, a former police officer, persuaded two American examiners, Pat Wertheim and David Grieve, to come to the Scotland to reexamine the evidence. Wertheim and Grieve testified that McKie could not be the source of the latent print. McKie was acquitted and released. In 2002, the biscuit tin latent was reviewed by Wertheim and Allan Bayle, a former Scotland Yard examiner. They concluded that Ross could not be the source of the print. In other words, the SCRO had allegedly made two erroneous identifications in a single investigation. Asbury was released. This does not necessarily mean that he was actually innocent.
McKie sued the police, and a full investigation into the SCRO was launched. Two extensive reports issued in response to the scandal said a great deal about the organizational culture and procedures of the Scottish Criminal Records Office, but virtually nothing about the technical details of the McKie and Asbury attributions themselves and why they may have occurred. Reforms were instituted at the SCRO.
Another SCRO case emerged after the reforms undertaken in response to the McKie case. Mark Sinclair was convicted of armed robbery in 2003, in part based on a latent print from one of the crime scenes. SCRO examiners testified that they had "no doubt" that Sinclair was the source of the latent print. Allan Bayle concluded the "identification to be unsafe." Two examiners from the Police Service of Northern Ireland agreed that the latent print was insufficient for identification. Because no consensus has formed, the Sinclair case is not included as a misattribution in my data set.

m. Jackson
In 1998, Richard Jackson was convicted and sentenced to life in prison for the murder of Alvin Davis, his friend and occasional lover, in Upper Darby, Pennsylvania. The sole evidence against Jackson was a latent print found on a fan in Davis's home. Three latent print examiners attributed the crime scene print to Jackson: Anthony Paparo of the Upper Darby police, William Welsh of the county police, and Jon Creighton. an IAI-certified examiner from Vermont. Jackson hired his own experts, Vemon McCloud and George Wynn, both former examiners for federal agencies, who concluded that he was not the source of the print. With McCloud and Wynn questioning the prints, the government hired a consultant, Eugene Famiglietti. According to District Attorney Patrick Meehan, Famiglietti said, "You guys made a gutsy call. Stick to your guns." Later, however, Famiglietti said the comparison was inconclusive.
Although McCloud and Wynn testified at trial, the jury convicted Jackson, and he was sentenced to life in prison. After Jackson was convicted, McCloud and Wynn complained to the IAI and the FBI. The FBI and the five members of the IAI Latent Print Certification Board reviewed the evidence and agreed with McCloud and Wynn's conclusion that Jackson was not the source of the print. After some prosecutorial resistance and delays, Jackson was released, having served two years in prison. The true perpetrator has never been caught. Creighton was decertified by the IAI.

n. "Manchester"
Journalists' investigation of two disputed identifications in Manchester, England (the Wallace case and McNamara case) turned up an erroneous identification that occurred in 2000. This attribution had been "triple-checked." The suspect had a convincing alibi and did not fit the witness's description. It was eventually discarded as an erroneous identification. It is not known how many corresponding ridge characteristics were testified to in these two misidentifications, but the sixteen-point minimum standard was in place in the United Kingdom at that time.

o. Hatfield
Kathleen Hatfield was mistakenly identified as dead, based on an erroneous fingerprint identification in 2002. In June 2002, an unidentified corpse was found in the desert near Las Vegas, Nevada. "After some skin restoration using tissue builder," the coroner was able to obtain a single thumbprint "of value." This print was compared unsuccessfully with a number of inked prints from missing persons. Hatfield, a forty-six year-old transient from Sonoma County, California, had been listed as a missing person in May by her mother. Hatfield matched the physical description of the corpse. The Califomia Sheriffs Office faxed a copy of Hatfleld's ten-print card to the Las Vegas Metropolitan Police Department. The prints were examined by a Law Enforcement Support Technician Supervisor. This individual did not work in the ten-print section of the Police Department but had twenty-five years often-print experience and "had been helping the coroner's office make identifications for many years." This individual identified the body as Hatfield based on the fingerprints. Las Vegas Police Detective David Mesinar said, "We only had one readable fingerprint, and it was so close a match that they went ahead and made an identification." Hatfield's mother was informed, and funeral preparations were made. Hatfield had by this time been stopped and released by the Sonoma County police. The Sonoma County sheriffs began looking for Hatfield and eventually found her in August. Her mother was informed. Hatfield's grave had already been dug.
Meanwhile, the Sonoma County Sheriffs Office mailed Hatfield's tenprint card to Las Vegas. The Technician re-examined the print and decided that she had made an error. The Las Vegas Municipal Police Department Latent Print Unit confirmed that the prints did not match. No official analysis of the erroneous identification has been made public.

p. Valken-Leduc
In 2001, David Valken-Leduc was charged with the 1996 murder of a motel clerk in Woods Cross, Utah. Latent print examiner Scott Spjut testified at a preliminary hearing that Valken-Leduc was the source of two bloody prints found at the crime scene. Spjut was not merely an IAI certified examiner; he was the Chair of the IAI Latent Print Certification Board, the body that oversees the certification examination (and had helped determined that the match in the Jackson case was erroneous). Spjut subsequently died, shot by a rifle he was examining in the laboratory. Whether the shooting was accidental or suicide is still not clear. After Spjut died, the crime laboratory reviewed his findings and found that the victim was the actual source of the bloody crime-scene prints. Whether the misattribution was fraud or an "honest error" is also not clear. Crime Laboratory Director Rich Townsend told the press, "We're mystified as to how he came up with this conclusion with his level of training and expertise." But Valken-Leduc's attorney told the press, "[O]ur first line of attack was going to be that [Spjut] had manufactured evidence in other cases." No such additional cases have yet been reported.

q. Cowans
The Cowans case is the first in which DNA evidence played a role in demonstrating that the fingerprint evidence was erroneous. Stephan Cowans was convicted of attempted murder in 1997 for allegedly non-fatally shooting a police officer, while fleeing a robbery in Roxbury, Massachusetts. He was implicated in the crime by the testimony of two eyewitnesses, including the victim, and a fingerprint found on a cup. (The perpetrator fled the scene, invaded a home, and held the family hostage for around ten minutes. During that period, the perpetrator drank from a cup.) Boston Police Department (BPD) latent print examiner Dennis LeBlanc testified that he found sixteen corresponding ridge characteristics between the latent print from the cup and Cowans's known print. LeBlanc testified that the two prints were "identical" and that the latent print belonged to Stephan Cowans. BPD latent print examiner Rosemary McLaughlin verified the attribution. Cowans was sentenced to thirty to forty-five years in prison. According to Cowans's attorney. Cowans retained two former BPD fingerprint experts who agreed that he was the source of the latent print. Cowans served six years in prison, volunteering for "biohazard" duty in order to earn money for a post-conviction DNA test. Three DNA samples recovered from the same mug that contained the latent print and from a hat and sweatshirt discarded by the fleeing perpetrator all excluded Cowans as the donor of the DNA. Based on the DNA evidence, the Boston and State Police reexamined the fingerprint evidence and concluded that it was erroneous. Cowans was freed in January 2004. Subsequent investigation revealed the latent print actually belonged to one of the family members who was held hostage. Unlike the other cases discussed here, criminal charges were brought against the latent print examiners involved. An external review reported that LeBlanc had "discovered his mistake" before trial "and concealed it all the way through trial." However, a grand jury declined to indict LeBlanc and McLaughlin. They were, however, reassigned and suspended with pay. In an extraordinary move. Police Commissioner Kathleen O'Toole shut down the entire BPD fingerprint unit and turned latent work over to the state police. Allegations were made that Boston Police Identification Unit had long been a "dumping ground" and "punishment duty" for troubled cops.

r. Mayfield
The most recent and best-known case in the U.S. is the Mayfield case (see supra Introduction). Mayfield, an attorney in Portland, Orgeon, was a Muslim convert and a U.S. Army veteran." He had once represented, in a child-custody case, one of the "Portland Seven," who had pled guilty to conspiracy to wage war against the United States. Even when Mayfield was first arrested, it was known that the Spanish National Police were uncertain about the identification. While FBI examiners identified fifteen corresponding points of comparison, the Spanish could only find eight. Spain has a ten-point minimum standard. The FBI adheres to no set standard for declaring a match. FBI examiners reportedly traveled to Madrid to try to convince the Spanish that the identification was legitimate. On this occasion, the FBI reportedly declined to examine the original evidence and instead "relentlessly pressed their case anyway, explaining away stark proof of a flawed link—including what the Spanish described as tell-tale forensic signs—and seemingly refusing to accept the notion that they were mistaken. Further investigation showed that the FBI had reprimanded Agent Massey for making false attributions in 1969 and 1974.

4. Analysis of Known Cases of Misattribution
I compiled the above twenty-two reported cases of misattribution using conservative selection criteria. Although there is no information on how many times latent print identification has been used in crime investigation, the number is clearly large, and twenty-two cases pale in comparison. Some might even go so far as to suggest that this figure is so small that the characterization of the error rate of latent print identification as zero is warranted. However, before doing so, we need to understand the problem of exposure. That is, are these twenty-two cases the full complement of actual cases of latent print misattribution (or close to the full complement), or are they merely the tip of the iceberg? The following analyses wilt indicate why the latter is more likely the case.

a. Temporal trends
The first reason to believe that the known cases of misattribution do not account for all actual cases of misattribution is their distribution over time (Figure 1). Clearly, misattributions are clustered in recent years and appear to be occurring at an accelerating rate. One possible explanation for this is that the quality of latent print analysis is degrading. This might be because training is being eroded by budget cuts or by computerization." Or, perhaps latent print examiners have becoming increasingly complacent, and hence sloppy.
Complacency, however, seems unlikely. Although fingerprint examiners are not legal scholars and may not have been immediately aware of the import of the Daubert ruling in 1993, the fact that the case might stimulate heightened scrutiny from the defense bar has been in the legal literature since at least 1997. The challenge to the admissibility of fingerprint evidence in United States v. Mitchell in 1999 was very well publicized within the fingerprint profession. If the perceived level of defense, judicial, and media scrutiny is a measure of examiner vigilance, then latent print examiners should have been at their most vigilant since the first two decades of the twentieth century during the period after 1999. And yet, that period contains some of the most embarrassing cases of misattribution.
A more plausible explanation is that misattributions are being brought to the public's attention at a higher rate. There is little doubt that the growing controversy over the validity of forensic fingerprint identification after Mitchell has made fingerprint misattributions more newsworthy. A glance at the sources, infra Part II.A.3, reveals that the earlier cases appear in legal and scholarly literature, but not in the press, whereas the opposite is generally true of the more recent cases.
If the apparent increase in misattribution is actually an increase in exposure, the temporal trend is disturbing. Misattributions have been exposed at a rate of more than one per year, during a period in which latent print examiners are well aware that they are under greater scrutiny than any other time since the introduction of the technique.

b. Offense characteristics
An analysis of the offenses implicated in the known cases of misattribution gives even stronger reason to doubt that actual cases of misattribution are limited to this data set. Figure 2 shows the distribution of offenses in the known cases data set. The overrepresentation of very serious crimes is striking. More than half of the misattributions occurred in homicide cases (murder, murder investigation [Hatfield, McKie], or terrorist attacks). Sixty-eight percent involved very serious crimes (homicide, attempted homicide, or rape). If the cases in which the offense is unknown are removed (Figure 3), the figures are comparable. Sixty percent of cases involve murder or attempted murder; seventy-five percent involve very serious crimes.
Since homicide accounts for only around one percent of the total number of felony charges, it is clearly overrepresented among the known cases of disputed identification. Moreover, since I have combined cases for the United States and the United Kingdom, where the murder rate is one fifth that of the U.S.,"" this significantly understates the overrepresentation of errors in homicide cases.
It may be thought that this overrepresentation may be explained by the greater likelihood of using fingerprint evidence in homicide cases, as opposed to other criminal investigations. We can test this hypothesis. Professor Peterson et al. collected detailed data on the use of forensic evidence in a representative sample of adult serious crime cases in four American cities from 1976-1980. Table 2 shows that fingerprint evidence is indeed more likely to be recovered in homicide cases than in other criminal investigations, including burglary. However, the difference is not great enough to explain the overrepresentation of misattributions in murder cases. For example, homicide accounts for 54% of the misattributions, burglary (a crime for which it is plausible to think the use of fingerprint evidence would be common) only 18%. And yet, although fingerprint evidence is recovered in around 40% of homicide cases, it is also recovered in around 24% of burglary cases.
Another possible explanation is that misattributions are far more likely to occur in homicide cases than in less serious offenses like robbery, burglary, and drug offenses. It is possible that the pressure to close a homicide case leads latent print examiners to "push the envelope" further in these cases, elevating the potential for a misattribution.
A third possible explanation is that misattributions occur at the same rate in homicide cases and other cases but are more likely to be publicly exposed in eases involving very serious crimes because of the increased attention focused on those cases by media, defense counsel and experts, and other actors. If this were the sole explanation, it would suggest that—even accounting for the greater prevalence of fingerprint evidence in homicide cases-if misattributions in felony cases were exposed at the same rate as in homicide cases, there might be around 600 exposed cases of misattribution (this still excludes the "dark figure" of unexposed cases).
Is the overrepresentation of homicide cases in exposed cases of fingerprint misattribution a consequence of examiner overzealousness or more efficient exposure mechanisms? As Professor Gross has commented in another, though related, context, "the truth is probably a combination of these two appalling possibilities." In its report on the Mayfield case, however, the FBI has opted for the former explanation. The report concludes that "the inherent pressure of working an extremely high-profile ease . . . was thought to have influenced the examiner's initial judgment and subsequent examination. Similarly, the report concludes that the verification process was tainted "because of the inherent pressure of such a high-profile case" and recommends that "[a] new quality assurance rule is needed regarding high-profile or high-pressure

c. The fortuity of exposed cases
Perhaps the strongest evidence that the known cases of misattribution only represent the tip of the iceberg is the fortuity of the exposure of cases of misattribution. Only in 27% of the cases of misattribution could the exposure be said to have occurred in the routine process of a criminal trial, usually through the efforts of defense experts." In two cases (Chiory and Manchester)" there is not enough information to determine how the error was exposed. In 63% of the cases, extraordinary circumstances were required to expose the fact that misattributions had occurred. The Loomis print was disputed during his trial, but he was convicted; the identification was only retracted during a second trial that Loomis had won on unrelated grounds.  The Caldwell error was only exposed during the trial of a coconspirator.  Had the co-conspirator died, plea-bargained, had charges dropped, or not mounted a vigorous defense, the error would never have been exposed. The Lee error was brought to light by the confession of the true perpetrator, always a fortuitous and highly unlikely event. The McNamee error was exposed during the course of vigorous appeals and reinvestigations undertaken over the course of eleven years.
The McKie case involved the prosecution of a police officer with an extremely supportive father who was also a police officer and the extraordinary last-minute intervention of American fingerprint examiners in a Scottish case. That a former police officer would be driven to the brink of suicide and into depression by her efforts to contest fingerprint evidence, suggests something of the uphill battle faced by a criminal defendant who has fewer material and psychological resources with fingerprint evidence being adduced against them.
The Manchester Case was exposed only because the suspect had an alibi and did not match the physical description. The Hatfield error was exposed by the highly unusual circumstance of a supposedly identified corpse turning up alive. The Valken-Leduc error was exposed by a new review of the evidence, occasioned by a bizarre, fatal laboratory accident."
In addition, many of the cases were exposed by "cascading"—the exposure of one disputed attribution generated scrutiny that would not otherwise have occurred. This scrutiny, in turn, revealed further cases of disputed attributions. A defense motion for discovery of the fingerprint evidence, which prompted the exposure of the Basden error, may be the normal course of business. (I have coded it as normal.) But, even if it is, the three additional Fayetteville cases would probably never have been exposed were it not for the exposure of the Basden error. The Asbury error was exposed only through the attention generated by the McKie error. And, Wallace and "Manchester" were only exposed after journalists began investigating the McNamara case.
Fingerprint evidence is so powerful that erroneous fingerprint evidence is likely to convict, convict securely, and never be exposed." In most cases, extraordinary circumstances are necessary to expose a fingerprint misattribution. Consider, for example, the Cowans case. Imagine that the perpetrator were not so obliging as to have (1) drink from a cup, while fleeing the crime, and (2) discarded two items of clothing containing his DNA at the scene. Had the perpetrator not done those two things it is virtually certain that Cowans would have served his full sentence of thirty-five years without anyone ever knowing that the fingerprint evidence (and the eyewitness evidence) was erroneous." Cowans's exoneration (and the exposure of the fingerprint misattribution) also required the retention and preservation of the evidence containing the DNA for six years and the willingness of a court to order post-conviction DNA testing. Stephan Cowans himself expressed this most poignantly after his exoneration when he remarked to a reporter "that the evidence against him was so overwhelming that if he had been on the jury, he would have voted to convict himself.
Similarly, consider the Mayfield case. Only the stubborn resistance of the Spanish National Police to apparently intense pressure from the FBI exposed the error. Imagine the Mayfield latent being discovered on U.S. soil. As a terrorist case, the print probably would have gone directly to the FBI. No other agency would have looked at it. With the Spanish National Police out of the picture, the error might never have been exposed. Even Mayfield's own expert corroborated the erroneous match. Now imagine the Mayfield latent being discovered on U.S. soil and being initially examined by a local law enforcement agency, rather than by the Spanish National Police. Would a local U.S. law enforcement agency have withstood as well the pressure that the FBI apparently applied to the Spanish National Police? Even in those circumstances, it seems highly unlike that the Mayfield error would ever have been exposed. Finally, there is the role of the media in bringing the Mayfield identification to light. The Mayfield case was publicized prematurely because of press leaks in Europe. From the earliest reports of Mayfield's arrest, it was reported that the Spanish police entertained doubts about the fingerprint evidence." Had the leak not occurred, the Mayfield error might have been resolved behind closed doors and never made public. FBI latent print examiners might still be claiming, in sworn testimony, never to have made a misattribution.
The high degree of fortuity associated with the known cases of disputed attribution further strengthens the likelihood that known cases represent only a small portion of actual cases of error and that the "dark figure" of unknown cases is likely to be significantly higher than the "light figure" of known cases.
It may, of course, be argued that each one of the known cases of misattribution demonstrates that "the system works." precisely because it has become known to us. In a case, such as Jackson, where reputable defense experts offered clear and explicit testimony that the attribution was erroneous, this is a plausible argument (though, since the jury convicted anyway, Jackson certainly diminishes our faith that the criminal justice system "works"). But the majority of misattributions were not exposed through such routine reviews. Moreover, the "system works" argument puts those with fingerprint evidence adduced against them in a double bind: if errors are not exposed, latent print examiners claim that latent print identification is infallible; if errors are exposed, latent print examiners claim that their mechanisms for detecting errors "work."

d. Safeguards against misattribution
The misattributions data set demonstrates that none of the supposed safeguards against misattribution is immune from failure. For example, some courts have held that "verification" provides a safeguard against error. Latent print examiners have argued that competence is a safeguard against error." It has also been argued that a high "point standard"— requiring a certain (high) number of matching ridge characteristics in order to declare a match—protects against misattribution." Most persuasively, it has been argued that defense experts provide a safeguard against false attributions. Even within this relatively small data set, misattributions have been known to occur when each of the aforementioned safeguards is in place.
For example, the misattributions data set demonstrates that verification does not prevent misattributions. Erroneous identifications were verified by one examiner in Caldwell, at least one examiner in Cooper, two examiners in Chiory, several examiners in McNamee, two examiners in the Manchester Case, three examiners in both McKie and Asbury. two examiners in Jackson, one examiner in Cowans, and two examiners in Mayfield. Indeed, more than half (12/22) of the known misattributions were attested to by more than one examiner. This supports that argument, posited by Haber and Haber, that, if "verification" is not conducted blind, the "verifier" is more likely to ratify misattributions than detect them." These findings are particularly important because "quality assurance" and "quality control" (QA/QC) are increasingly invoked as the basis for confidence in the reliability of latent print identification." These findings show that existing quality control measures do not appear to be particularly effective at detecting fingerprint misattributions.
Similarly, the data set refutes the notion that certified latent print examiners do not make errors. Caldwell was erroneously identified by three IAI-certified examiners. Midwestern involved an IAI-certified examiner, as did Jackson. Valken-Leduc was erroneously identified by the Chair of IAI Latent Print Certification Board. In fact, nearly one-third (7/22) of the total number of American" examiners implicated in disputed identifications after IAI certification was instituted in 1977" were IAI certified.  Given that only a small (though unknown) percentage of practicing latent print examiners are IAI-certified, IAI-certified examiners carry a surprisingly high proportion of the responsibility for disputed identifications. This suggests that the misattribution rate for IAI-certified examiners may be equal to, or even greater than, that for non-certified examiners. It is possible that certified examiners are more overconfident in making marginal attributions.
The data also show that a high point standard is insufficient to protect against misattribution. Of the twelve cases in the data set for which the number of supposed matching ridge characteristics is known, in fully half of those cases the misattribution was made with at least sixteen points. Sixteen points has historically been considered a very exacting standard. Three-quarters of the eases had at least fourteen points, and none of the cases involved fewer than eleven points.
Perhaps most surprisingly, the data show that even the provision of defense experts does not protect a criminal defendant against misidentification. In four cases (Caldwell, McKie, Cowans, and Mayfield), disputed identifications were corroborated by independent experts. As will be discussed further below, that independent experts would corroborate erroneous attributions suggests that the underlying cause of misattributions runs very deep indeed.

[Continued in next week's Detail]

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Have a GREAT week!