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Updated the Detail Archives

Updated the Smiley Files with one new Smiley from Julie Snyder, Grand Rapids PD.

Updated the RSW Plus page with the April, 2007 course in Ft. Collins, Colorado - there are still seats available.  Learn from Glenn Langenburg and Josh Bergeron how to more effectively utilize ACE-V, practice methods for documenting Analysis prior to Comparison, and efficiently use Adobe Photoshop to document the Comparison phase of ACE-V and demonstrate latent print identifications.  For details and registration information, contact Bonnie@foridents.com or by phone at 1-888-235-1230

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Cynthia Rennie distilled a presentation by Dr. Itel Dror and David Charlton at the recent ABFDE seminar.

The subject of today’s Weekly Detail is a case that might be of interest not just for latent print examiners, but for practitioners of all comparative forensic disciplines to keep on the radar.  On January 19, 2007, Justice Patricia Coffey of the New Hampshire Superior Court, granted a defendant’s Motion in Limine to Exclude a latent print identification until such time that she is satisfied that examiners have conducted “a methodologically reliable analysis” on the single latent print identification in the criminal case. [emphasis added]  A strategy session is being held at which the prosecutor, examiners, and other relevant personnel will determine how to best address the concerns of the judge and request reconsideration of her decision.  Steve Ostrowski, with approval from the prosecuting attorney and his supervisor, brings us the scoop on this important case:

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Judge Grants Motion to Exclude Latent Fingerprint Identification
by Steve Ostrowski, CLPE
NH State Police Forensic Lab, Concord, NH

On Friday, January 19, 2007, the New Hampshire State Police Forensic Laboratory was informed that a ruling had occurred on their most recent Daubert hearing concerning the admissibility of fingerprint evidence.  In the case of State v. Richard Langill, an almost yearlong ordeal was to determine if a single latent friction ridge impression identified as being deposited by the defendant in the victim’s home during a burglary could be used at trial.  Justice Patricia C. Coffey of the Rockingham County Superior Court granted the defendant’s Motion to Exclude, precluding the latent print examiner's expert opinion from being presented to a jury. 

The proceedings began with the depositions of the state examiner, Criminalist Lisa Corson and the defense expert, Professor James Starrs in mid-to-late January 2006.  The hearing was actually conducted on two days nine months apart.  The first day of the hearing was January 27, 2006 in which Ms. Corson offered evidence to support of the science of fingerprint identification.  The deposition of state examiner Criminalist Stephen Ostrowski was then conducted in mid-February.  Due to several continuations from both sides, the second day of the hearing did not take place until October 11, 2006.  On this day, Prof. Starrs offered evidence stating that stricter guidelines and more documentation concerning latent comparisons were needed throughout the field.  Mr. Ostrowski subsequently offered testimony that countered points brought forward by Prof. Starrs.

This is not the first time the New Hampshire State Police Forensic Lab has been challenged to prove the reliability of fingerprint evidence.  In 2004, a Daubert hearing found fingerprints to be reliable and thus admissible in the case of State v. Uno Kim.  In this case Stephen Meagher of the FBI and Marc Dupre of the NHSP Forensic Lab offered testimony for the state and the defense offered no expert.  In 2005, a Daubert hearing again found fingerprint evidence to be reliable and admissible in the case of State v. William Sullivan.  In this case Stephen Ostrowski offered testimony for the state while the defense offered Dr. Simon Cole as their expert.  Both of these hearings were more “traditional” in that they provided evidence to support the prongs set out in Daubert v. Merrell Dow, being testability and standards, peer review, error rate, and general acceptance.

In this case of State v. Richard Langill, the court sided with many points taken from the decisions in US v. Mitchell, US v. Sherwood, US v. Crisp, US v. Havvard, US v. Llera Plaza, State v. Kim, and State v. Sullivan.  This court ruled that:  1) Ms. Corson has sufficient training and experience to qualify as an expert and offer testimony;  2)  the principles underlying fingerprint identification are generally reliable;  3)  the underlying principles of permanence and uniqueness are a reliable basis for expert testimony;  4)  the premise that an individualization can be made based on sufficient quality and quantity has been peer reviewed;  5)  fingerprint identification is generally accepted within the forensic identification community.

The court refrained from commenting on error rate as it simply summarized the arguments set forth by each side.

After the court had determined that Ms. Corson’s methodology was generally valid, it set out to determine whether the principles and methods were indeed properly applied to the facts of the case at hand.  Daubert sets the focus of the courts solely on principles and methods, not the conclusions derived from their application.  Rule 702 of the Federal Rules of Evidence focuses more on the actual application of the methodology and whether it was reliably applied.

In 2004, a new state law NH RSA 516:29-a, entitled Testimony of Expert Witness, integrated verbiage from Rule 702 and expanded on the traditional Daubert prongs providing additional criteria a judge must consider when finding an expert to be qualified and whether that expert’s testimony would be reliable and relevant.  The additional verbiage states:

A witness shall not be allowed to offer an expert testimony unless the court finds: a) such testimony is based upon sufficient facts or data; b) such testimony is the product of reliable principles and methods; and c) the witness has applied the principles and methods reliably to the facts of the case.

Based primarily on part “c” of the additional verbiage provided in NH RSA 516:29-a, the court ruled:

Ms. Corson is qualified through training, experience, and proficiency testing to provide expert testimony at the defendant’s trial.  However, Ms. Corson’s proffered testimony is inadmissible under Rule 702 because her application of the ACE-V (Analysis, Comparison, Evaluation, and Verification) methodology to the single latent print in this case was unreliable as a result of incomplete documentation and possibly biased verification.

The defendant challenged that the absence of written contemporaneous bench notes for the analysis, comparison, evaluation, and verification (ACE-V) phases of the fingerprint examination illustrates that the application of the methodology of ACE-V was unreliable.  Concerning documentation, the court stated:

Friction ridge impressions are extremely detailed, and in this case, the expert opinion that the latent print found at the scene was matched to the defendant appears to be the heart of the state’s case against the defendant.  Accordingly, the application of ACE-V warrants close scrutiny.

Commenting further on documentation, the court stated:

Contemporaneous documentation of the analysis will help alleviate the inherent risk of human error in the application of the ACE-V methodology….  Although the court recognized that the precise mental analysis engaged in by an examiner may be impossible to document, that is not to say that each examiner could not document his or her application of the ACE-V methodology as extensively as practicable.

In addition to the issue of documentation via contemporaneous written bench notes during the ACE-V methodology by both the original examiner and verifying examiner, the court felt that certain aspects of the verification phase warranted commentary.  The court was presented with testimony concerning confirmation bias and blind verification as the defense had introduced several works such as: the Office of the Inspector General’s report, “A Review of the FBI’s Handling of the Brandon Mayfield Case,” Robert B. Stacey’s article, “Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case,” and Simon Cole’s book Suspect Identities: A History of Fingerprinting and Criminal Identification.  Referencing these works, the court stated that:

The identification process used in this case was not independent in the true sense of the word because the verifying examiner was aware that an individualization had already been made.

The court went on to state:

Blind verifications would not necessitate…that every latent print be examined twice regardless of the outcome of the initial analysis.  The court can envision possible methods of creating a plausible blind verification process, such as assigning verification cases without identifying them as such.

In summary, the court found that 1) because the state’s examiner did not record written contemporaneous notes during the application of the analysis phase of the ACE methodology and  2) the NHSP Forensic Lab does not employ a protocol calling for blind verification for single latent print identifications, there was insufficient basis to find that the ACE-V methodology was applied in a scientifically reliable fashion.

In the final sentence of her decision, Judge Coffey did state that the fingerprint identification is excluded “until such time that this court is satisfied that the (lab) has conducted a methodically reliable analysis on the latent print.”  Currently, transcripts are being procured, affidavits are being written and a strategy meeting is planned to determine how to proceed.  It is anticipated that a Motion to Reconsider will be filed with the Rockingham County Superior Court with an appeal being a distinct possibility if warranted.

Stephen H. Ostrowski, MSFS, CLPE
Criminalist II
New Hampshire State Police Forensic Laboratory
33 Hazen Drive
Concord, New Hampshire  03305
ph. 603.271.3573
fax 603.271.1086
email:  sostrowski@safety.state.nh.us

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Post-decision comment by Stephen Meagher:

After reviewing the Court’s decision, special attention must be placed on the very last sentence which states “Accordingly, the defendant’s Motion in Limine to Exclude the fingerprint identification is GRANTED until such time that this court is satisfied that the NHDSFL has conducted a methodically reliable analysis on the latent print found on Ms. Katz’s bureau.” This statement implies that the Judge will leave this matter open and provide the prosecution the opportunity to rectify what has been identified as inadequacies in the latent print examination in order to meet the legal requirements in N.H. Therefore, we must respect the on-going legal proceedings and not interfere or cause harm for either side.

Until this legal matter is resolved, we, the latent print community, need to 1) monitor this matter as it plays out, 2) not interfere with comments of speculation, criticism of NHDSFL, or legal debate, and 3) glean from it the concerns the court raises, regardless of the outcome. After all, the customer of our services is the court.

Discussion amongst latent print experts on the two matters raised by this court, case documentation of ACE-V and blind verification, is certainly worthy and encouraged. Neither of these topics are new and may best be addressed by SWGFAST through the establishment of more detailed guidelines for case documentation of ACE-V and for blind verification practices and procedures.

The Court’s decision reflects well on NHDSFL as the record indicates they represented our discipline’s scientific basis extremely well. Neither the scientific underpinnings to the fingerprint discipline nor the key Daubert issues were brought into question by the Court.

As this case evolves this website will provide updates in an effort to keep you informed of the latest activities.

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A .pdf of the complete decision of Justice Coffey is available for those wishing for a more thorough review of the basis for her decision.

As articles appear in the mainstream media, let's work together to make sure that the links are posted quickly to the CLPEX discussion forum.  There is no need for multiple threads for each article... just reply to the discussion thread that starts us out.