we look at the rest of this article detailing "The Rehetoric of Error", analysis of the Mayfield case, and conclusions.  As last week, the portion represented below is not complete, but rather represents portions of the 95 page article that would be most interesting to latent print examiners.  The entire article can be found on the "Reference" page of CLPEX.com.

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

III. THE RHETORIC OF ERROR
A. THE ZERO ERROR RATE
    As discussed above, latent print examiners continue to claim that the error rate of latent print identification is "zero." How can the claim that the error rate of forensic fingerprint identification is zero be sustained? The claim is sustained by two types of parsing of errors, which I will call typological and temporal parsing.
I. Typological Parsing
    Typological parsing is achieved by assigning errors to two distinct categories: "methodological" (sometimes called "scientific") and "practitioner" (sometimes called "human"). It may be illustrated most clearly by Agent Meagher's testimony at the Mitchell Daubert hearing:
Q: Now—Your Honor, if I could just have a moment here. Let's move on into error rate, if we can, please, sir? I want to address error rate as we have—you've heard testimony about ACE-V, about the comparative process, all right? Have you had an opportunity to discuss and read about error rate?
A: Yes.
Q: Are you familiar with that concept when you talk about methodologies?
A: Sure.
Q: And where does that familiarity come from, what kind of experience?
A: Well, when you're dealing with a scientific methodology such as we have for ever since I've been trained, there are distinctions—there's two parts of errors that can occur. One is the methodological error, and the other one is a practitioner error. If the scientific method is followed, adhered to in your process, that the error in the analysis and comparative process will be zero. It only becomes the subjective opinion of the examiner involved at the evaluation phase. And that would become the error rate of the practitioner.
Q: And when you're talking about this, you're referring to friction ridge analysis, correct?
A: That is correct. It's my understanding of that regardless of friction ridge analysis.
The analysis comparative evaluation and verification process is pretty much the standard scientific methodology and a lot of other disciplines besides—
Q: And that may be so. Are you an expert or familiar with other scientific areas of methodologies?
A: No, I'm not an expert, but I do know that some of those do adhere to the same methodology as we do.
Q: Are you an expert on their error rate?
A: No.
Q: Based on the uniqueness of fingerprints, friction ridge, etcetera, do you have an opinion as to what the error rate is for the work that you do. latent print examinations?
A: As applied to the scientific methodology, it's zero.

    Meagher's invocation of the "zero methodological error rate" generated an approving response within the fingerprint community. In another case, Meagher testified as follows:
"With regards to discussing the error rates in terms of methodology which from my understanding is the real focus of attention for the hearing here. The methodology has an error rate of zero where practitioner error rate is whatever practitioner error rates for that individual or group of individuals."
    Since the Mitchell Daubert hearing, the claim that the error rate of fingerprint "methodology" is zero has become enshrined as dogma within the fingerprint community. Latent print examiners are coached to recite this position when cross-examined. For example, Wertheim fils [Latin for "Son"] advises latent print examiners to answer the question "What is the error rate of fingerprint identification?" as follows:
    "In order to fully address this issue, you must decide which error rate you are going to
address. Two types of error are involved: PRACTITIONER error and the error of the SCIENCE of fingerprints. The fact is, nobody knows exactly how many comparisons have been done and how many people have made mistakes, so you can't answer that issue. Of course the error rate for the SCIENCE itself is zero. The way to answer this question on the stand might sound something like: If by error you mean HUMAN error, then I would answer that there is no way for me to know, since I do not have detailed knowledge of casework results from departments throughout the country. However, if by error you mean the error of the science itself, then my answer is definitely zero. If follow up questions are asked, you can explain: There are only three conclusions a latent print examiner can come to when comparing two prints: Identification, Elimination, or Insufficient detail to determine. (Explain each of these) Insufficient doesn't apply, because you are asking about the error rate involving identification. The fact is, any two prints "of value" either A: were made by the same source, or B: they were not. There is no probability associated with that fact. Therefore, the science allows for only one correct answer, and unless the examiner makes a mistake, it WILL be the correct answer. That is what I mean when I say the error rate for the science of fingerprints IS zero, (the little emphasis on "is", as you nod your head once to the jury, doesn't show up in the transcript, but it sure helps get the jury to nod back in agreement!!)"
    It should be noted that, in their sworn testimony, latent print examiners appear to follow Wertheim's second piece of advice, but not his first. That is, judging from court opinions (infra Part lll.B), latent print examiners do testify that the "methodological error rate" is zero, but they do not testify that the "practitioner error rate" is unknown. Rather, they testify that the practitioner rate is "essentially zero" or "negligible" - statements that have no basis in any attempt to actually measure the "practitioner error rate" but are nevertheless taken by courts as gospel.

2. Temporal Parsing
    An alternative stratagem rests upon a temporal parsing of error. In this formulation, all documented errors are consigned to a conceptually distant past that is no longer relevant to the present. The reasoning is that errors provoke changes in procedure that then render past procedures obsolete. Since new procedures are now in place, it is unfair to brand the state-of-the-art practice with past errors. Temporal parsing may be illustrated by the testimony of Dr. Budowle at the Mitchell Daubert hearing:
Q: "Tell us how [error rate] applies to scientific methods, methodology."
A: "Well, this transcends all kinds of forensic, it transcends all disciplines in that[, but] in the forensic area particularly, this has been an issue discussed repeatedly in lots of disciplines, whether it is DNA chemistry and latent fingerprints. We have to understand that error rate is a difficult thing to calculate. I mean[,] people are trying to do this, it shouldn't be done, it can't be done. I'll give you an example as an analogy. When people spell words, they make mistakes. Some make consistent mistakes like separate, some people I'll say that I do this. I spell it S-E-P-E-R-A-T-E. That's a mistake. It is not a mistake of consequence, but it is a mistake. It should be A-R-A-T-E at the end.
    That would be an error. But now with the computer and Spell Check, if I set up a protocol, there is always Spell Check. I can't make that error anymore. You can see, although I made an error one time in my life, if I have something in place that demonstrates the error has been corrected, it is no longer a valid thing to add [as] a cumulative event to calculate what a error rate is. An error rate is a wispy thing like smoke, it changes over time because the real issue is, did you make a mistake, did you make a mistake in this case? If you made a mistake in the past, certainly that's valid information that someone can cross-examine or define or describe whatever that was, but to say there's an error rate that's definable would be a misrepresentation. So we have to be careful not to go down the wrong path without understanding what it is we are trying to quantify.
    Now, error rate deals with people, you should have a method that is defined and
stays within its limits, so it doesn't have en-or at all. So the method is one thing,
people making mistakes is another issue."
    Whatever the merits, in principle, of Budowle's argument, if taken seriously, it places an immovable obstacle in the path of any court seeking to estimate an error rate for anything. There are, of course, inherent problems in estimating any sort of error rate. But these are problems that practitioners in diverse areas of science and industry have managed to live with, and courts, according to the Supreme Court, are now duty-bound to struggle with them as well. Even if we accept Budowle's argument that it is difficult to calculate error rates prospectively, that does not mean that we should not try to estimate error rates, nor that past performance is still probably the best guide to estimating future performance. In Budowle's schema, no error rate could ever be calculated, as all exposed errors recede immediately into the supposedly "irrelevant" past. The error rate does indeed become "a wispy thing like smoke."

S. What is "Methodological Error Rate"?
    The concept of "methodological error rate" is not one that the government adapted for fingerprinting from some other area of scientific or technical endeavor. Typing the term "methodological error rate" into an Internet search engine (for example, Google) yields results pertaining almost only to forensic fingerprint evidence, not to any other area of scientific or technical endeavor. In none of its briefs in Mitchell supporting this concept did the government cite any other area of scientific or technological endeavor where it is thought appropriate to split the concept of error rate in this fashion. Nor does the government cite any other cases in which the Daubert error rate criterion is interpreted in this fashion. Since the concept exists only in the field of latent print identification, a field that is not populated by credentialed scientists, it merits especially strict scrutiny.
    The problem is that the practitioner is integral to the method of latent print identification. In other words, the "methodology" consists entirely and solely of having a practitioner analyze the prints. There is no methodology without a practitioner, any more than there is automobile without a driver, and claiming to have an error rate without the practitioner is akin to calculating the crash rate of an automobile, provided it is not driven.
    Even if one were to accept the distinction between "methodological" and "practitioner" error, these categories would be useful only for a scientific or policy-driven assessment of latent print identification. For legal purposes, the only relevant matter is the overall error rate—that is, the sum of the "methodological" and "practitioner" error rates. If one is boarding an airplane, one is interested in the total error rate-the sum of all error rates, if error is parsed. Although there may be some utility to parsing error in the case of airplane crashes into, say. pilot and mechanical errors—provided, of course, that attributions can be made consistently and coherently—no one would wish for them to substitute for, or obscure, the overall error rate. If one is deciding whether to board an airplane, the relevant infonnation is the overall error rate. If one is deciding whether scarce resources should be allocated to pilot training or mechanical inspections, then the relevant information may be to parse crashes into "human" and "mechanical" causes. A legal fact finder is in the position of the passenger boarding the plane, not the policymaker allocating resources. Therefore, judges, who are responsible for ensuring that relevant and reliable information is put before the fact finder, should be concerned with the rate at which the process or technique in question provides accurate conclusions to the fact finder, which is given by the overall error rate. Even if one were to grant the legitimacy of parsing of error into categories, the categorical error rates are irrelevant to the court's inquiry. The overall error rate is the only relevant piece of information to put before a court.
    Moreover, unlike the broad categories posited in airplane crashes, the assignment of error in fingerprint identification is asymmetric. In aviation risk assessment, neither the pilot nor the mechanical error rate is zero. In fingerprint identification, one type of error is said to be zero. How can this be? The answer is that all known cases of error are automatically assigned to only one of the two categories: practitioner error. By attributing all documented errors to practitioners, the methodological error rate remains—eternally—zero. The "methodological error rate," by definition, could not be anything other than zero. This, of course, takes away the force of any claim of an empirical finding that the "methodological error rate" has been found to be zero. Fingerprint evidence could be shoddiest evidence ever promulgated in a court of law and, defined as it has been, the "methodological error rate" would still remain zero!
What this means, of course, is that even if in some areas a meaningful distinction can be drawn between "methodological" and "practitioner" error, in fingerprint practice the concept is vacuous.
    The most generous interpretation of what latent print examiners mean when they claim the "methodological error rate" is zero is that they are saying that no latent print misidentifications are caused by nature. In other words, no misattributions are caused by completely identical areas of friction ridge detail existing on two different fingers. As one prominent latent print examiner, William Leo, testified: "And we profess as fingerprint examiners that the rate of error is zero. And the reason we make that bold statement is because we know based on 100 years of research that everybody's fingerprint are unique, and in nature it is never going to repeat itself again."
    As Wertheim pere [Latin: "Father"] puts it, "So when we testify that the error rate is 'zero,' what we mean is that no two people ever have had or ever will have the same fingerprint." This argument fails to understand that the issue in the original Mitchell Daubert hearing—and the issue more generally—was never about errors caused by individuals possessing duplicate fingerprint patterns.
    An even more simplistic formulation of this generous version of the "methodological error rate" is the argument that because there is only one source for the latent print, the "methodological error rate" is zero. As Agent Meagher put it in his testimony in a pre-trial hearing in People v. Hood: "Because fingerprints are unique and they are permanent there can
only be one source attributed to an impression that's left so there have—there can only be one conclusion. It's ident or non ident."
    One might just as well argue that since there is only one person that an eyewitness actually saw, one could claim that the "methodological error rate" of eyewitness identification is zero. Or, that, because each test subject is either pregnant or not pregnant, the "methodological error rate" of any pregnancy test—no matter how shoddy—is zero.
    It is apparent that, when pressed, latent print examiners can water down the claim of a "zero methodological error rate" to propositions that are, in and of themselves, so banal as to be unobjectionable. Who can doubt that only one individual is, in fact, the source a particular latent print? Or even that there are not individuals walking around with exact duplicate ridge detail on their fingertips? The danger lies in not fully communicating these retreats to the jury. Latent print examiners can clarify what they mean by "methodological error rate" in their professional literature and in pretrial admissibility hearings and neglect to do so in their trial testimony. A juror who hears "the methodological error rate is zero, and the practitioner error rate is negligible" would be forgiven for assuming that "methodological error rate," in this context, refers to something significant, rather than a banality, like "only one person could have left the latent print." This potential for using the aura of science to inflate the fact-finder's credence in expert testimony is precisely the sort of thing that an admissibility standard, like Daubert/Kumho, is designed to mitigate. The "methodological error rate" is so potentially misleading that courts must rein it in.

4. The "Roomful of Mathematicians"
    The fallacy of the "methodological error rate" is well illustrated by an example that fingerprint examiners are fond of using: the roomful of mathematicians. Consider the following analogy drawn by Agent Meagher:
    "The analogy that I like to use to help better understand the situation is the science of math. I think everyone agrees that probably the most exact science there is, is mathematics. And let's take the methodology of addition. If you add 2 plus 2, it equals 4. So if you take a roomful of mathematics experts and you ask them to perform a rather complex mathematical problem, and just by chance one of those experts makes a [sic] addition error - adds 2 plus 2 and gets 5 - does that constitute that the science of math and the methodology of addition is invalid? No. It simply says is that that practitioner had an error for that particular day on that problem."
    Fingerprint examiners are particularly fond of using the mathematics analogy. Wertheim pere writes, "[j]ust as errors in mathematics result from mistakes made by mathematicians, errors in fingerprint identification result from the mistakes of fingerprint examiners. The science is valid even when the scientist errs." Special Agent German argues. "[t]he latent print examination community continues to prove the reliability of the science in spite of the existence of practitioner error. Math is not bad science despite practitioner error. Moreover, air travel should not be banned despite occasional crashes due to pilot error." In response to the Mayfield case, Wertheim pere commented, "Just because someone fails to balance his checkbook, that should not shake the foundations of mathematics." The analogy between the practice of forensic fingerprint analysis and the abstract truth of addition seems rather strained. But, even if we accept the analogy on its own terms, we can readily apprehend that the only relevant information for assessing the reliability of a forensic technique is precisely that which Agent Meagher deems irrelevant: the rate at which the roomful of mathematicians reaches correct results. In other words, it is the roomful of mathematicians that constitutes forensic practice, not the conceptual notion of the addition of abstract quantities. If defendants were implicated in crimes by mathematicians adding numbers, a court would want to know the accuracy of the practice of addition, not the abstract truth of the principles of addition.

B. THE COURTS' VIEW OF ERROR RATE
    Courts have been generally credulous of the parsing of error into categories. In the first written ruling issued in response to an admissibility to challenge to fingerprint evidence under Daubert, the court wrote: "The government claims the error rate for the method is zero. The claim is breathtaking, but it is qualified by the reasonable concession that an individual examiner can of course make an error in a particular case . . . Even allowing for the possibility of individual error, the error rate with latent print identification is vanishingly small when it is subject to fair adversarial testing and challenge."
    On appeal, the Seventh Circuit credited Agent Meagher's testimony "that the error rate for fingerprint comparison is essentially zero. Though conceding that a small margin of error exists because of differences in individual examiners, he opined that this risk is minimized because print identifications are typically confirmed through peer review." In United States V. Crisp, the court similarly accepted at face value the testimony of a latent print examiner "to a negligible error rate in fingerprint identifications."
    In United States v. Sullivan, the court did share "the defendant's skepticism that" latent print identification "enjoys a 0% error rate." However, the court concluded that there was no evidence that latent print identification "as performed by the FBI suffers from any significant error rate," noting "FBI examiners have demonstrated impressive accuracy on certification-related examinations." These are, of course, the examinations characterized as laughable by Mr. Bayle and the Llera Plaza court. The court allowed the government's unsupported claim of a "minimal error rate" to stand.
    In the first decision in United States v. Llera Plaza (herinafter Llera Plaza I), the court allowed the claim of zero "methodological error rate" to stand, although it dismissed it as largely irrelevant to the reliability determination before the court.
    In its second decision (hereinafter Llera Plaza II), however, the court credited the testimony of FBI examiners that they were not themselves aware of having committed any errors;
    "But Mr. Meagher knew of no erroneous identifications attributable to FBI examiners. Defense counsel contended that such non-knowledge does not constitute proof that there have been no FBI examiner errors. That is true, but nothing in the record suggests that the obverse is true. It has been open to defense counsel to present examples of erroneous identifications attributable to FBI examiners, and no such examples have been forthcoming. I conclude, therefore, on the basis of the limited information in the record as expanded, that there is no evidence that the error rate of certified FBI fingerprint examiners is unacceptably high."
    The court appears to have understood full well the point made here (supra Part II.A.4.c) that because of the weakness of exposure mechanisms it would be foolhardy to assume that known errors are any more than a small subset of actual errors. Nonetheless, the court chose to use this argument to uphold fingerprint evidence on the "error rate" prong of Kumho Tire. As I have argued elsewhere, this was poor enough reasoning at the time, but it is even more embarrassing now that two short years later we do have definitive proof that the FBI has committed at least one exposed false positive; the Mayfield case. The court's embarrassment should be even more acute since the Mayfield case has brought to light that: one of the examiners implicated in the Mayfield misattribution, John Massey, did, in fact, make errors that were exposed within the organization itself prior to being presented in court; that Massey continued to analyze fingerprints for the FBI and presumably testify in court with the usual "infallible" aura; and that Massey was still hired to "verify" an identification in an extremely high-profile case. Further, Massey's history of false attributions was exposed during a trial in 1998, four years prior to the Llera Plaza hearing."
    The court would have been better educated by asking Agent Meagher about exposed errors within the laboratory than focusing solely on the highly unlikely exposure of errors after they are presented in court as purportedly error-free. In my critique of Llera Plaza II, I argued that Meagher's testimony was better evidence of the weakness of the FBI's error-detection mechanisms than it was that the FBI had not committed any errors. Interestingly, in a presentation about the Mayfield case to the IAI, Meagher reportedly said the following: "Question: "Has the FBI made erroneous identifications before?" Steve: "The FBI identification unit started in 1933 and we have had 6 or 7 in total about 1 every 11 years. Some of these were reported and some were not."
    Given Meagher's sworn testimony in Llera Plaza /, we must assume that he was referring here to errors that were caught within the laboratory before being testified to in court. Where and how some of these errors were "reported" is not clear.
    The Third Circuit ruling on the appeal of Mitchell (the first challenge to fingerprint evidence under Daubert) rejected Mitchell's argument that there is no methodological error rate distinct from the practitioners. But the court's reasoning made clear that by "methodological error rate" it understood something like an "industry-wide" error rate, as contrasted with an individual practitioner error rate, not a theoretical error rate that is set by fiat at zero. The court acknowledged the argument made in this article (infra Part III.C) that it is problematic to automatically assign all known errors to practitioners rather than "the method." But, like other courts, the Mitchell court then went on to make the unsupported assertion that "even if every false positive identification signified a problem with the identification method itself (i.e., independent of the examiner), the overall error rate still appears to be microscopic. From this, the court concluded that "the error rate has not been precisely quantified, but the various methods of estimating the error rate all suggest that it is very low." In short, the court completely neglected the exposure problem indicated by the fortuity of the known false positives. Instead the court noted that "the absence of significant numbers of false positives in practice (despite the enormous incentive to discover them)."
    Of course, a technique with a "very low" measured error rate may be admissible, but it ought not be permitted to tell the fact-finder that its error rate is "zero." Interestingly, the court acknowledges this, noting, ''the existence of any error rate at all seems strongly disputed by some latent fingerprint examiners." The court looks dimly on this. In one of its "three important applications" of "[t]he principle that cross-examination and counter-experts play a central role in the Rule 702 regime," the courtnotes that "district courts will generally act within their discretion in excluding testimony of recalcitrant expert witnesses—those who will not discuss on cross-examination things like error rates or the relative subjectivity or objectivity of their methods. Testimony at the Dauhert hearing indicated that some latent fingerprint examiners insist that there is no error rate associated with their activities.... This would be out-of-place under Rule 702. But we do not detect this sort of stonewalling on the record before US."
    Here, then, is a welcome and long overdue judicial repudiation of latent print examiners' claim of a "zero methodological error rate." The only baffling part is the court's patently false assertion that such claims were not made "on the record before us," when, as we have seen the claim originated and was most fully developed in the very record before the court. There is no record in which the claim of a zero error rate was made earlier, nor any record in which it was made more forcefully.
    In sum, not only do courts gullibly accept the claim of the zero "methodological error rate," they also parrot totally unsupported assertions from latent print examiners that the so-called "practitioner error rate" is "vanishingly small," "essentially zero," "negligible," "minimal," or "microscopic." These assertions are based on no attempt to responsibly estimate the "practitioner error rate"; they are based solely on latent print examiners' confidence in their own practice. Confidence, as we know from the world of eyewitness identification, does not necessarily equate with accuracy. A sign of hope, however, recently emerged from a concurring opinion in the Court of Appeals of Utah, which suggested that "we should instruct our juries that although there may be scientific basis to believe that fingerprints are unique, there is no similar basis to believe that examiners are infallible."
    "Methodological error rate" might be viewed not merely as a product of latent print examiners' and prosecutors' misunderstanding of the notion of error rate, but, worse, as a deliberate attempt to mislead finders of fact. The concern over the potential for a finder of fact to give inflated credence to evidence clad in the mantle of science is embedded in the very notion of having an admissibility barrier. The potential to mislead a fact-finder by saying, "My methodological error rate is zero, and my practitioner error rate is negligible," is extremely high. The "methodological error rate" is a bankrupt notion that should have been immediately rejected when it was first proposed. Indeed, it probably would have been, had it not been advanced in defense of something with such high presumed accuracy as latent print identification. Since it was not rejected, courts should do as the Third Circuit said (if not as it did) and exclude any testimony claiming that the error rate of latent print identification (or. for that matter, anything) is zero because of the extreme danger that fact-finders will give it credence. If they do not, then all sorts of expert and non-expert witnesses will be able to invoke this notion as well. Why should the manufacturer of litmus paper not be able to claim that her litmus paper has a zero "methodological error rate" because substances are either acid, base, or neutral? Why not allow the eyewitness to claim a zero "methodological error rate" because only one person was seen? Why not allow a medium to claim a zero "methodological error rate" because the defendant is either guilty or innocent? Why not allow all pregnancy tests to claim a zero "methodological error rate" because all women either are pregnant or are not? The scientific and forensic scientific communities should also explicitly disavow the notion of "methodological error rate" as it is framed by latent print examiners.

C. ACCOUNTING FOR ERROR
    In one sense, the claim of a zero "methodological error rate" is merely a rhetorical ploy to preserve fingerprinting's claim to infallibility. But, at the same time, it has a more insidious effect. The insistence upon "methodological" infallibility serves to deter inquiry into how the process of fingerprint analysis can produce errors. This, in turn, hampers efforts to improve the process of fingerprint analysis and, possibly, reduce the rate of error. Only by confronting and studying errors can we learn more About how to prevent them.
    The mechanism for assigning all errors to the category of "human error" is attributing them to "incompetence." Elsewhere I have explored the sociological dimensions of the fingerprint profession's mechanisms for sacrificing practitioners who have committed exposed false positives on the altar of incompetence, in order to preserve the credibility of the technique itself. In fingerprint identification, incompetence is said to be the cause of all known cases of error—at least all of those that are not assigned to outright fraud or malfeasance. These attributions of incompetence, as we shall see, are made in a retrospective fashion and without evidence. In short, the only evidence adduced in favor of the claim that the examiner was incompetent is the same thing incompetence is supposed to explain: the exposed misattribution. Incompetence then supports a variant on the "zero methodological error rate" argument; the claim that "the technique" is infallible as long as "the methodology" is applied correctly. Again, attributions of incorrect application of the methodology are made in a retrospective fashion without evidence. It is the exposed error that tells us that correct procedures were not followed.
    Fingerprint examiners steadfastly maintain that the process is error-free in competent hands. Ashbaugh states, "When an examiner is properly trained a false identification is virtually impossible." Wertheim pere asserts, "Erroneous identifications among cautious, competent examiners, thankfully, are exceedingly rare; some might say 'impossible.'" Wertheim fils flatly declares, "a competent examiner correctly following the ACE-V methodology won't make errors." And, elsewhere: "When coupled with a competent examiner following the Analysis, Comparison, Evaluation process and having their work verified, fingerprint identification is a science, the error rate of the science is zero." Beeton states, "As long as properly trained and competent friction ridge identification specialists apply the scientific methodology, the errors will be minimal, if any." These arguments can be sustained, even in the face of exposed cases of misidentification committed by IAI-certified, or otherwise highly qualified, examiners only by retrospectively deeming individuals who have committed exposed false positives incompetent.
Thus, Sedlacek, Cook, and Welbaum, the three examiners implicated in the Caldwell case, were deemed incompetent, despite being IAI-certified. In the Cowans case, Massachusetts Attorney General Thomas Reilly, after failing to secure a criminal indictment for perjury against LeBlanc, stated, "Science is not an issue in this case. What we know is that there is right way to do this and the right way was not followed." LeBlanc himself, said, curiously, "The system failed me. And the system failed Cowans."
    Regarding the Jackson case. Agent Meagher stated "I think this was a—a case where you need to really look at the qualifications of the examiners. Having looked at the prints, I would certainly say that these individuals were lacking the necessary training and experience needed to take on that level of a comparison examination that they did."
    Again, one of the three examiners implicated in the disputed attribution (Creighton) was IAI-certified, and, therefore, should be difficult to deem incompetent. On paper, the IAI-certified expert Creighton, who was "wrong," was no less qualified than the IAI-certified experts Wynn and McCloud, who were "right." It is only because we now agree with Wynn and McCloud that we deem Creighton incompetent. Notice the circularity of Meagher's argument: "Having looked at the prints, I would certainly say that these individuals were lacking..." It is by looking at the evidence, that we are able to judge the expert's competence. Yet, in all routine fingerprint cases it is only by looking at the competence of the expert that we are able to judge the evidence!
    This approach to error raises the problem of the unreliability of mechanisms to expose incompetence. Imagine, for instance, that Jackson had fewer resources to marshal in his defense and had either been unable to procure defense experts or had procured less able defense experts who had corroborated the misidentification. The examiners who made the misidentification would now be presumed competent. Indeed, according to the logic put forward by proponents of fingerprint identification, the jury would be justified in believing—or being told—that forensic fingerprint identification, when in the hands of "competent" experts such as these, is error-free. Alternatively, consider the case of the identifications made by these experts just before they took on the Jackson case. Should the experts be deemed competent in these judgments or incompetent?
    Finally, it should be noted that all of these attributions of incompetence are simply postulated. No evidence was advanced to show that Sedlacek, Cook, Welbaum, or Creighton were incompetent. Instead, the presumed misattributions serve as the sole evidence of incompetence.

I. Incompetence as a Hypothesis
    At root, incompetence as an explanation for error is a hypothesis. Proponents of forensic identification attribute all exposed errors to incompetence. This may or may not be correct, but the answer cannot be known simply by assuming the conclusion.
    Consider once again the analogy with airplane crashes, an area where the adjudication ofthe attribution of an accident to a category of error (pilot or mechanical) is often hotly contested and highly consequential. In this case, there are actors with an interest in both attributions of error (the manufacturer and its insurer favor pilot error; the pilots' union—and perhaps the victims, seeing the manufacturer as having the deeper pockets—favor mechanical error). Clearly, reasons must be given to attribute the error to one cause or the other. Although the attribution may be contested, both sides must adduce evidence in favor of their hypothesized cause of error.
    In the cases discussed above, the attribution of incompetence is circular. No evidence is offered that the examiner is incompetent other than the fact that he or she participated in an error. The fingerprint establishment "knows" that the examiner is incompetent only because it disagrees with that examiner's conclusion in a particular case. Thus, the fingerprint establishment's judgment of the examiner's competence is based, not on any objective measure of competence, but solely on whether it agrees with the examiner's conclusions in one case.
    The effect of this is the creation of what might be called "a self-contained, self-validating system." Observe:
1.The proposition is urged that: Forensic fingerprint identification is 100% accurate (error-free) when performed by a competent examiner.
2. This proposition can only be falsified (refuted) by the demonstration of a case in which a "competent" examiner makes an error.
3.When cases of error are exposed, the examiners implicated are immediately, automatically, and retrospectively deemed "incompetent."
4. No exposed error—and no number of exposed errors—can refute the proposition.
5.The proposition cannot be refuted.
    Note also another effect of this: all criminal defendants are forced into the position of assuming that examiners in their cases are competent. Since incompetence is only exposed in a retrospective fashion (i.e. by making a misidentification) and such examiners are almost always excommunicated from the profession, all criminal defendants are subject to the "infallible" competent examiner.
    The remarkable thing is that we can easily imagine a state of affairs in which the proposition urged in (1) above can be tested. All we need is some measure of competence that is not circular, that does not depend on exposed misidentifications. For instance, one might reasonably treat the IAI's certification examination as a measure of competence. In that case, we would reason as follows:
1.The proposition is urged that: Forensic fingerprint identification is 100% accurate (error-free) when performed by a competent examiner.
2. Passage of the IAI certification test is a measure of competence.
3.The proposition may now be falsified by the exposure of a case in which an IAI-certified examiner is implicated in a misidentification. (Of course, in true falsificationist fashion, even if no such case is exposed, we still do not know that the proposition is true.)
4. IAI-certified examiners have been implicated in misidentifications (supra Part II.A.4.d).
5. The proposition is false.
    Note that this way of reasoning about error does not, contrary to what some might suggest, cause the sky to fall upon forensic fingerprint identification. All we have arrived at is that rather reasonable position that forensic fingerprint identification is not error-free. Fingerprint examiners admit this. But they attempt to have their cake and eat it too, by insisting on some mythical error-free zone that is unsullied by exposed cases of error.
The real danger of attributing error to incompetence is that it works just as well, regardless of the actual accuracy of the technique. In fact, the tragic irony of forensic fingerprint identification is that, even though it may be highly accurate, it adopts modes of reasoning and argumentation so obscurantist that they would work as well even if it were highly inaccurate.

2. Alternate Theoretical Approaches
     As a hypothesis, the assignment of all exposed errors to incompetence is unpersuasive. The range of circumstances, even in the very small data set of exposed cases, is extremely broad. Errors have been committed in obscure local law enforcement agencies by unheralded practitioners (Trogden) and by the elite of the profession in the highest profile cases imaginable (Mayfield). These examples suggest that error does not necessarily require an explanation; it is part of normal practice and is hardly surprising. All areas of scientific and technical practice are infused with error and have to confront and try to understand their own sources of error. Indeed, in some areas of science, like astronomy, as Professor Alder has recently eloquently described, the understanding of error is, in some ways, the core of the scientific work.
     Thus, one consequence of insisting upon incompetence as the explanation for all errors is that it prevents us from understanding anything about fingerprint errors. In place of the fingerprint community's unhelpful and unsupportable insistence upon assigning all errors to incompetence, I will suggest two sociological frameworks for thinking in a realistic way about forensic errors.

a. The Sociology of Error
     One way of understanding the fingerprint community's insistence on the incompetenee hypothesis draws from a sociology of science notion called "the sociology of error." This refers to the tendency, in commenting on science, to invoke "external causes," such as sociological or psychological phenomena, asymmetrically, to explain only incorrect results, not correct ones. Correct results are attributed solely to "nature," whereas false results are attributed to bias, ambition, financial pressure, and other such causes. For example, it has become commonplace to attribute Martin Fleischmann and Stanley Pons's premature announcement of having achieved cold fusion to "psychological" and "sociological" explanations-greed, ego, ambition, and the excessive pressure to publish first that pervades contemporary science. However, such explanations cannot explain incorrect results unless it is implausibly assumed that these psychological and sociological forces are not operative when science yields purportedly "correct" results. As Bloor puts it: "This approach may be summed up by the claim that nothing makes people do things that are correct but something does make, or cause them to go wrong. The general structure of these explanations stands out clearly. They all divide behaviour or belief into two types, right or wrong, true or false, rational or irrational. They then invoke sociological or psychological causes to explain the negative side of the division. Such causes explain error, limitation and deviation. The positive side of the evaluative divide is quite different. Here logic, rationality and truth appear to be their own explanation. Here psycho-social causes do not need to be invoked... The central point is that, once chosen, the rational aspects of science are held to be self-moving and self-explanatory. Empirical or sociological explanations are confined to the irrational . . . . Causes can only be located for error. Thus the sociology of knowledge is confined to the sociology of error."
    We can see the operation of this logic in latent print examiners' self-analysis. Incompetence, prosecutorial pressure, over-haste, a "bad day," vigilantism, and so on are invoked to explain errors. But presumably, if these factors were in force when errors were produced, they were also in force when supposedly "correct" results were produced as well.
As an antidote to the sociology of error, Bloor proposed the principles of "impartiality" and "symmetry." Bloor proposed that sociological explanations of the production of scientific knowledge would have to be capable of explaining the production of both "false" and "correct" beliefs (impartiality). And, the same causes would have to explain both "false" and "correct" beliefs (symmetry).
    We might begin to apply an impartial, symmetric analysis to fingerprint misattributions. The fingerprint community's inquiries into its own errors tend to fall, exactly into the sociology of error. Once it is determined that the conclusion was in error, retrospective explanations are sought as causes of the erroneous conclusions. But there is absolutely no evidence that fingerprint misattributions are caused by "the process" gone awry. (Indeed, because latent print examiners do not record bench notes—document what leads to their conclusions—there would be no way of demonstrating this even if it were true.) It is more likely that whatever process it is that produces correct results also sometimes produces incorrect results.
    If it were true that fingerprint errors had different superficial attributes from correct conclusions, detecting errors would not be difficult. We could simply devise ways of detecting incompetent examiners, bad days, high-pressure laboratories, and so on. But the insidious thing about fingerprint attributions is that they look just like correct attributions, until we identify them as misattributions.
    In short, retrospective explanations of fingerprint misattributions will not help us leam to identify them prospectively. This is the intended meaning of my epigraph—not, as the reader may have initially assumed, to liken latent print examiners to charlatans. The epigraph highlights, with absurd precision, the obvious point that the insurance scam only works because the mark cannot prospectively tell the difference between an honest insurance salesman and an imposter. The same is true of a fingerprint identification. The criminal justice system has no way of prospectively distinguishing between correct latent print attributions and misattributions. But, more importantly, it is true of the latent print examiner as well. A falsely matching known print (an imposter) presumably looks much the same as a truly matching one. What this leaves us with is an empirical question about latent print examiners' ability to detect imposters. All the rest of it—good intentions, the fact that there is only one finger that left the print—is beside the point. Latent print examiners are not the phony insurance salesmen of my epigraph; they are the victims, the unwitting consumers.
    For instance, in the wake of the Mayfield case, some latent print examiners have declared that they "do not agree with the identification." But whether a latent print examiner agrees with an identification that is posted on the Internet as a misattribution is of little interest to us. As my epigraph suggests, we want to know whether latent print examiners can distinguish the fake insurance salesmen from the real ones before they know they're phony, not after.

b. Normal Accidents Theory
    Another way of looking at this problem is drawn from "normal accidents theory" (NAT). Professor Perrow suggests that many catastrophic failures of technical systems are caused, not by deviation from proper procedure, but from the normal functioning of highly complex and "tightly coupled" systems (hence the term "normal accidents"). Fingerprint analysis is not highly complex, but it is tightly coupled. Similarly. Professor Vaughan suggests that error and misjudgment can be part of normal behavior, not necessarily caused by deviance. NAT would suggest that fingerprint errors are not pathological deviations from normal procedure, but simply consequences of normal activity.
    Perrow's analysis of marine accidents is suggestive of the type of "normal accident" that a latent print misattribution might be. These are accidents that are to some extent caused by creating an erroneous image of the world and interpreting all new, potentially disconfirming, information in light of that "expected world." As Perrow puts it; "[W]e construct an expected world because we can't handle the complexity of the present one. and then process the information that fits the expected world, and find reasons to exclude the information that might contradict it. Unexpected or unlikely interactions are ignored when we make our construction."
    Now consider Wertheim pere's description of latent print identification: "[T]he examiner would proceed with experimentation (finding features in the latent print, then examining the inked print for the same features) until the instant that the thought first crystallizes that this is, in fact, an identification. , , , The examiner continues to search for new features until it is reliably proven that each time a new feature is found in the latent print, a corresponding feature will exist In the latent print"
    While Wertheim thinks he has described "science," he has in fact described a process of gradually biasing his analysis of new information based on previously analyzed information. Could this be what happens in a fingerprint misattribution? Could it be that an examiner, having formed a hypothesis that two prints come from a common source, interprets potentially disconfirming information in a manner consistent with this hypothesis? Could this explain why latent print examiners make misattributions that in retrospect seem clearly erroneous?

3. Alternate Causes of Error
    I have argued that we need to confront and understand the nature of fingerprint error, rather than minimizing it, dismissing it, or retrospectively blaming it on incompetence, I will now suggest two possible causal mechanisms for fingerprint errors. While I cannot demonstrate a causal relationship between these factors and fingerprint errors, or arbitrate between these two mechanisms, I would suggest that they are at least as likely to be causal mechanisms as incompetence.

a. Natural Confounding
    The first alternate hypothesis is that disputed attributions are caused by the existence of areas of friction ridge skin on different persons" fingertips that, while not identical, are in fact quite similar. This possibility has been totally dismissed by the fingerprint community in its insistence upon the absolute uniqueness of all areas of friction ridge skin, no matter how small. This fact is supposed to rest upon a "law" that nature will never repeat the same pattern exactly. Even accepting, for the moment, this flawed argument, it does not hold that nature might not produce confounding patterns. In other words, nature might produce areas of friction ridge skin that, though not identical, are quite similar, similar enough to be confounded when using the current tools of analysis (i.e.. "ACE-V").
    In some sense this would be analogous to what, in forensic DNA typing, is called an "adventitious" or "coincidental" match. This refers to the fact that, given a certain DNA profile, a certain number of individuals may be expected to match the profile, even though they did not, in fact, leave the crime-scene sample. This expectation is phrased as the "random match probability." There is an important difference between an adventitious match in DNA and the analogous phenomenon in fingerprinting. In a DNA adventitious match, the samples do in fact match. In other words, there is no way of knowing that the match is "adventitious" rather than "true," other than, perhaps, external factors that make the hypothesis that the identified individual is the true source of the match implausible (such as, that the individual was incarcerated at the time).
    Because a fingerprint match is a subjective determination, there is a sense in which an adventitious fingerprint match does not "really" match. That is, once the match has been deemed erroneous one can find differences between the two prints. There are always differences between print pairs. In an identification, however, these differences are deemed explainable by the examiner.

b. Bias
    A second alternative hypothesis is bias. Bias can come in many forms. The tendency of forensic scientists to suffer from "pro-prosecution bias," which may be more or less conscious, as a consequence either of being law enforcement agents, identifying closely with them, or of simply working closely with them, has been well noted. This certainly might be problematic in fingerprint identification where a high proportion of practitioners are law enforcement officers and virtually all practitioners acquired their expertise through work in law enforcement. However, by "bias" I also mean to refer to a politically neutral form of psychological bias that has nothing to do with the analyst's conscious or unconscious feelings about the parties in criminal cases. In a groundbreaking article on "observer effects" in forensic science. Professors Risinger, Saks, Thompson, and Rosenthal draw on psychological literature to support the argument that forensic technicians engaged in tasks of determining whether two objects derive from a common source, like latent print identification, are subject to "expectation bias." In other words, the very process of what, in the so-called "ACE-V methodology," is called "Comparison"—going from the unknown to the known print—to see if the ridge detail is "in agreement" may create an expectation bias. Features seen in the unknown print may be more likely to be "seen" in the known print or, even more insidiously, vice versa. These effects will tend to cause observers to expect to see similarities, instead of differences, and may contribute to erroneous source attributions. Risinger et al. note that observer effects are well known in areas of science that are highly dependent on human observation, like astronomy, and these disciplines have devised mechanisms for mitigating, correcting, and accounting for them. Forensic science, however, has remained stubbornly resistant to even recognizing that observer effects may be in force.
    Latent print identification—in which no measurements are taken, but a determination is simply made by an examiner as to whether she believes two objects derive from a common source—is a prime candidate for the operation of observer effects. Several factors support the plausibility of the observer effects hypothesis. First, many of the disputed identifications discussed above were confirmed by second, third, and even fourth examiners. Since there is no policy in place for blinding verifiers from the conclusion reached by the original examiner, these examiners almost surely knew that their colleagues had reached conclusions of identification. This suggests that examiners are indeed subject to expectation and suggestibility and that these forces can cause them to corroborate misattributions. If expectation bias causes latent print examiners to corroborate misattributions, could it cause them to generate them as well?
    Even more suggestive are the cases in which examiners employed by the defense corroborated disputed attributions. That defense examiners sometimes corroborate disputed attributions would suggest that expectation and suggestion are so powerful they can overcome the defense expert's presumed pro-defendant bias. If anything, we would expect defense examiners to be biased in favor of exclusion because they are working for clients with an interest in being excluded. The work of a defense examiner likely consists mainly of confirming that the state's examiners did in fact reach the right conclusion. This may create a situation in which the defense examiner expects virtually all print pairs put before her to match. The fact that defense examiners have corroborated disputed identifications indicates that expectation bias may be even more powerful than the expert's bias toward the party retaining her.

4. The Mayfield Case
    It will be useful to explore the possible roles of natural confounding and observer effects by returning to what is perhaps the richest and most theoretically interesting (as well as the most recent and sensational) misattribution case: the false arrest of Brandon Mayfield. In the wake of the uproar, the FBI promised a review by "an international panel of fingerprint experts. That review is now complete, and the FBI has published a "synopsis" of the International Review Committee's findings.
    The report adopts the rhetorical distinction between "human" and "methodological" error, claiming, "The error was a human error and not a methodology or technology failure." The claim that the Mayfield error somehow did not involve "the methodology" as properly practiced is particularly difficult to sustain given the impeccable credentials of the laboratory, the individual examiners, and the independent expert.
    The most easily dismissed hypothesis was that the error was caused by the digital format in which the Madrid print was transmitted to the FBI. A second hypothesis posed by an anonymous FBI official in the press was "that the real issue was the quality of the latent print that the Spaniards originally took from the blue bag." But, this explanation can also be dismissed because the Spanish were apparently able to effect an identification to Daoud from the latent print, so the latent print was presumably of adequate quality.
    As mentioned above, the report singles out the high-profile nature of the case as an explanation for the error. This conclusion is interesting—and quite damaging to latent print identification's claims to objectivity. If latent print identification is less reliable in high profile cases, then how objective can the analysis be? But, pending further evidence, the conclusion is unpersuasive. The report offers no evidence, such as statements by the examiners, as to how the high-profile nature of the case might have influenced them. Instead, because an error occurred in a high-profile case, the report simply assumes that a causal relationship exists.
    There is no reason for us to accept this hypothesis as more persuasive than the NAT hypothesis: that the error was a product of normal operating procedure and that, if anything, the high-profile nature of the case is an explanation for the error's exposure, not its occurrence.
    At bottom, blaming the error on the nature of the case is merely a continuation of the rhetorical strategy of seeking to dismiss all errors as exceptional cases. The latent print community's characterization of the error as "the perfect storm" illustrates the effort to portray the case as so exceptional that it remains irrelevant to all other cases.
    Ultimately, the report itself identifies the reason that we are unlikely ever to find a persuasive explanation for the error. Because latent print examiners do not keep bench notes (they do not document their findings), it is nearly impossible to retrospectively reconstruct a misattribution.
    Given the impossibility of reconstructing the examiner's subjective process, let us explore the possibilities of natural confounding and bias. Could the Mayfield error be due to natural confounding? The FBI press release refers to "the remarkable number of points of similarity between Mr. Mayfield's prints and the print details in the images submitted to the FBI." The possibility that the Mayfield case represents the first exposed "adventitious cold hit" in a latent print database is intriguing.
    As I have noted elsewhere, the idea of searching latent prints in some sort of seamless global database has been an unfulfilled dream throughout the twentieth century. Only today is computer technology beginning to make such a "global database" possible, although there are still formidable problems with making national and regional databases technically compatible. Latent print examiners' flawed argument that, in the course of filing and searching fingerprint records, they had never come across two identical prints, was always based on searches of local databases. Since a truly global search was impractical, fingerprint examiners extrapolated from the absence of duplicates in local databases the much broader principle that, were one to search all the world's databases, one would not find duplicates either. Today, functionally global searches are becoming practicable in high profile cases (such as an alleged Al Queda terrorist attack on European soil). Given the nature of the case and the rapidly advancing technology, the Madrid print may have been one of the most extensively searched latent prints of all time. It may be that the Mayfield case demonstrates what may happen when one actually does a global search: one finds very similar though not completely identical, areas of friction ridge skin. This is analogous to a phenomenon long observed by DNA analysts: as the size of the databases increases, the likelihood of an adventitious cold hit increases as well.
    Oddly enough, what makes the natural confounding hypothesis seem less plausible are precisely the misleading "suspicious facts" about Mayfield; his conversion to Islam, his Egyptian spouse, his military service, and his connection to the "Portland Seven." If the Mayfield error were purely an adventitious cold hit—a case of a computer searching for the closest possible match to a latent print created by Daoud and then gulling the examiner into
making a misattribution—what is the likelihood that the victim of the adventitious cold hit would be an individual with such seemingly plausible connections to an Al Qaeda operation, as opposed to say an octogenarian evangelical Christian with a criminal record? This suggests that the "suspicious facts" about Mayfield may have been introduced into the latent print identification process at some point, at least "finning up," if not actually generating, the misattribution. If facts about Mayfield did influence latent print examiners, then it was a highly improper introduction of "domain-irrelevant information" into what should have been a technical analysis. While it would be proper for an investigator to use the "suspicious facts" about Mayfield to evaluate the plausibility of the latent print match, it is highly dangerous for a forensic technician to do so. But an anonymous FBI source has strenuously denied that the latent print analysts knew anything about Mayfield before they made the attribution.
    Even without domain-irrelevant information, the possibility of unconscious bias ("observer effects") remains strong. The initial analyst, Green, may have been induced to seek the best possible match among those produced by the database search. The "verifiers." Wieners and Massey, may have been unconsciously influenced by the fact that Green has made an attribution. Then Moses, who did know the domain-irrelevant information, but whose bias ought to have pointed away from attribution, also corroborated the false attribution.
Even in the face of the Mayfield case, the fingerprint community continues to seek to minimize the significance of error. Wertheim pere for example, advised his colleagues to give the following testimony when asked about the Mayfield case:
    A: "(turning to the jury) The FBI fingerprint section was formed in 1925.  Over the last 79 years, the FBI has made tens of thousands, hundreds of thousands, probably millions of correct identifications. So now they finally made a mistake that led to the arrest of an innocent man. and that is truly a tragic thing. But figure the "error rate" here. Are fingerprints reliable? Of course they are. Can mistakes be made? Yes if proper procedures are not strictly followed. But I cannot think of any other field of human endeavor with a track record of only one mistake in 79 years of practice."
    To interpret Mayfield as showing that the FBI has made only one error in seventy-nine years, as opposed to only having had one error exposed in seventy-nine years, exhibits a complete denial of the exposure problem detailed above (supra Part ll.A.4.c).

CONCLUSION
    As I have argued elsewhere, the myth of the infallibility of fingerprint identification is in many ways a historical accident. I suggest, with lain McKie, that it is a burden that fingerprint examiners never ought to have been asked to shoulder and never ought to have assumed. Unable to resist the offer of infallible expert witness status, fingerprint examiners have now painted themselves into a comer in which they must resort to rhetorical gymnastics in order to maintain the claim of infallibility in the face of mounting evidence of error. We can help them out of this corner and give finders of fact a more realistic way of assessing the trustworthiness of latent print attribution, but the examiners will have to leave the "zero methodological error rate" behind.
    We need to acknowledge that latent print identification is susceptible to error, like any other method of source attribution, and begin to confront and seek to understand its sources of error. I have drawn some tentative conclusions in this paper based on what is probably a very inadequate data set of exposed errors in the public record. Some of these conclusions may not be sustained once a more complete data set is obtained. One way to begin the process of studying error would be for law enforcement agencies and the professional forensic science community to begin assembling a more complete data set of latent print errors. In addition, the IAI should put in place a regular mechanism for reviewing cases of disputed identifications, as was done in Jackson. This mechanism should be known and publicized without the hesitation that it will expose the fact that latent print attributions are sometimes erroneous. Then latent print error will no longer be "a wispy thing like smoke."

Complete article with citations:
The Journal of Criminal Law & Criminology, Vol. 95, No. 3,


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