UPDATES ON CLPEX.com

Updated the Fingerprint Interest Group (FIG) page with FIG #39.

Inserted Keeping Examiners Prepared for Testimony (KEPT) #14: Verification - Explanation.   Discuss this topic on CLPEX.com - a discussion has been created for KEPT.
_________________________________________

we look at a pending U.S. Supreme Court case that could affect requirements for forensic analyst live testimony on their laboratory reports.

_________________________________________
New Hampshire Supreme Court Reverses Langill 
by Steve Ostrowski
 

There was reason for celebration in New Hampshire last week as the long awaited matter of State v. Richard Langill has finally been resolved.  On Friday, April 4, 2008, the New Hampshire Supreme Court issued its ruling which determined whether a decision by Superior Court Judge Patricia Coffey to exclude expert testimony regarding the individualization of a latent fingerprint was legally practicable.  To the delight of the members of the New Hampshire State Police Forensic Lab’s Identification Unit, the Supreme Court unanimously reversed the decision of the lower court and remanded the case back to the Rockingham County Superior Court.  This ruling came as a collective relief to practitioners throughout the comparative sciences and could hopefully provide a foundation to defend future challenges.

The appeal originated from a pair of rulings issued by the lower court which excluded fingerprint evidence from a 2004 burglary case.  In 2006, Coffey presided over a two day Daubert admissibility hearing (albeit, the two days were ten months apart).  In January of 2007, she ruled that the fingerprint evidence would be excluded from trial and upheld that decision a few months later in response to a Motion for Reconsideration.  Aspects of the initial admissibility hearing, subsequent legal proceedings and decisions, and oral arguments in front of the five justice panel of the New Hampshire Supreme Court have been outlined in previous articles in The Weekly Detail  ^{1, 2, 3}.

During oral arguments this past February, the State argued that the lower court exceeded its role of gatekeeper and assumed the role of jury when determining the admissibility of fingerprint evidence during the Daubert hearing.  The State believed Coffey’s requirements of contemporaneous written documentation of the cognitive process and blind verification of the identification went above and beyond the generally accepted procedures in the field of fingerprint identification.  The Defendant retorted that beyond being found scientifically reliable, any methodology or test must be found to have been applied in a reliable manner.  Additionally, the Defendant argued the lack of proper contemporaneous written notes and blind verification had prevented the court from determining if the tests were indeed administered reliably.

In this latest ruling, the Supreme Court described the application of NH Rule of Evidence Rule 702 and NH RSA 516:29-a  to expert testimony in general.  The Court described how they are the final arbiters of the legislative intent as expressed in the totality of a statute’s language.  The decision proceeded to break down the verbiage of the aforementioned statutes and compare that with the current Federal Rule of Evidence 702 and several decisions from various Federal Courts of Appeals.  The Court favored the approach taken by the Federal Court of Appeals for the Eighth Circuit which stated:

When the application of a scientific methodology is challenged as unreliable under Daubert and the methodology itself is otherwise sufficiently reliable, outright exclusion of the evidence in question is warranted only if the methodology was so altered by a deficient application as to skew the methodology itself.       United States v. Gipson, 383 F.3d 689, 697 (8^th Cir. 2004)

This same court, however, emphasized Daubert’s focus on the “differing functions of judge and jury” by stating that:

…vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burdens of proof are the traditional and appropriate means of attacking shaky but admissible evidence.     United States v. Martinez, 3 F.3d (8^th Cir. 1993)

Refuting the State’s argument, the Court found that NH RSA 516:29-a requires a court to examine whether a witness has, in actuality, reliably applied the methodology to the relevant evidence before allowing testimony from that witness.  They do note, however, that the term “reliable” does not mandate correctness, but rather a “much lower standard, to wit, trustworthiness.”  The general intention of these rules of evidence is to ensure that the court and the jury are actually presented with reliable and relevant scientific evidence, as opposed to being denied access to evidence that is not faultless.  The Court found that it would be unreasonable to interpret the statute as requiring any methodology applied with one or more errors to be automatically deemed inadmissible.  The gatekeeping role must decide the severity of any errors and determine if those errors caused a fundamental change in the methodology which could subsequently render that methodology unreliable.  Consequently, any serious flaw would warrant the suppression of the method while less-negating errors would simply go to the weight of the evidence and be subjected to the adversarial process.

Specifically concerning State v. Langill, the NH Supreme Court ruled that it was an “unsustainable exercise of discretion” for the lower court to find the examiner’s testimony inadmissible.  The court summarized that the examiner’s testimony should have been given much more weight than Coffey had originally assigned.  The decision noted that the examiner testified that all of the laboratory protocols were followed with regard to the application of the ACE-V methodology.  It also noted that the witness basically repeated the application of the ACE-V methodology on the stand using a charted enlargement and describing all of the sequential steps of the application of the methodology for the latent print in question.  The decision stated that there was an opportunity to cross-examine the witness to expose potential errors in the application of the methodology.  Also, the Court acknowledged that an important element of the adversarial process was not employed by the Defendant during previous legal proceedings.  A second expert could have been retained to review sworn testimony from either the pre-hearing deposition or the admissibility hearing itself to pinpoint shortcomings in the witness’s application of the ACE-V methodology, but this was not done.

With regard to written notes, the Court ruled that even though contemporaneously written documentation could have shown that the examiner correctly applied the ACE-V methodology or even memorialized thoughts for future reference, they “were not necessary to determin(e) whether she applied the methodology reliably (emphasis by court) to the facts of the case.”  Because the State had demonstrated during direct examination that the expert witness had good grounds for her opinion, the Court ruled that the trial court “exceeded its gatekeeping function” by finding the testimony unreliable due to of a lack of sufficient written documentation.

With regard to blind verification, the Court stayed with much of the same line of thinking.  They noted that the lower court had ruled that “in general, ACE-V is a reliable method for analyzing latent fingerprints.”  They found that other courts have concurred while additionally noting that verification may not be “blinded.”  Additionally, the Court noted that the fingerprint community is currently debating whether blind verification actually improves the accuracy of results.  Ultimately, the Court decided that although verifications by another examiner with no reasonable expectation of the outcome may improve accuracy, the lack of blind verification certainly does not lead to unreliable results. 

Once again, the Court ruled that it was an unsustainable exercise of discretion for the lower court to find the witness’s opinion inadmissible based on a court-imposed requirement of blind verification.  They found no indication that the absence of blind verification in this case negated the basis for the reliability of the ACE-V methodology itself.  If anything, the lack of blind verification would go towards the weight of the examiner’s testimony and not the admissibility of the evidence.

As anticipated, this decision came down to the distinction between being a measure of reliability and a mandate for enhanced reliability.  Although not fundamentals of the scientific methodology, Coffey perceived contemporaneously written notes on the mental process and blind verification as requisites to render the evidence reliable and admissible.  Admittedly, these factors could affect various aspects of the case such as: the credibility of the witness during testimony, the weight of the evidence, or even the accuracy of the latent print identification results.  Although the enhancement of these factors may make the scientific evidence more reliable, the absence of these factors unquestionably does not make the evidence unreliable or inadmissible. 

We are certainly glad that this saga is over and even more delighted that the NH Supreme Court has ruled in favor of forensic science.  Though tough at times, this ordeal has taught us tremendous lessons as it forced us to examine and scrutinize how we conduct our work here in New Hampshire.  As any good team of scientists should, we have learned from our transgressions, developed ways by which we could improve our daily work, and have diligently implemented these improvements into our protocols and procedures.  Maybe these items are an article for another time.

If you would like to read the entire fourteen page decision for yourself please follow the succeeding link:

http://www.clpex.com/Information/NHvLANGILL/NH_Supreme_Court_Decision-4Apr08.pdf

References:

1.        “Judge Grants Motion to Exclude Latent Fingerprint Evidence,”
           The Weekly Detail, no. 285, 2007.
            http://www.clpex.com/Articles/TheDetail/200-299/TheDetail285.htm

2.         “Coffey Rules on Reconsideration of New Hampshire’s Langill Decision,”
            The Weekly Detail, no. 296, 2007.
            http://www.clpex.com/Articles/TheDetail/200-299/TheDetail296.htm

3.         “New Hampshire Supreme Court Hears Arguments in Langill Appeal,”
            The Weekly Detail, no. 341, 2008.
            http://www.clpex.com/Articles/TheDetail/300-399/TheDetail342.htm

Written by:

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

_________________________________________

KEPT - Keeping Examiners Prepared for Testimony - #14
Verification - Explanation
by Michele Triplett, King County Sheriff's Office

Disclaimer:  The intent of this is to provide thought provoking discussion.  No claims of accuracy exist. 

Question – Verification – Explanation:

Why does the verifier know the results of the first examiner?

Possible Answers:

a)      It’s a time saving measure.

b)      You have to know the previous conclusion so you can try to prove that conclusion wrong.  Trying to prove something wrong helps diminish bias.

c)      Without knowing the results you can’t review if the information is correct.  This includes checking whether the conclusions being reported are accurate, whether proper procedures were followed, and if the conclusions were drawn from the data that was available. 

Discussion:

Answer a:  This is the most common answer and even though knowing someone else’s conclusion does save time, it’s not a concern of the verifier.  Confirming a previous conclusion is scientifically acceptable with simple conclusions but with complex situations then a conclusion needs more weight behind it than merely confirming the conclusion.  When complex situations arise, the conclusion is given more weight if the verifier corroborates the conclusion and insures that it was arrived at using appropriate principles.  The only way to scrutinize a conclusion in this way is by knowing the first examiners conclusion.

Answers b and c:  These answers are both good answers but answer c is a little more comprehensive.

_________________________________________

Feel free to pass The Detail along to other examiners.  This is a free newsletter FOR latent print examiners, BY latent print examiners. With the exception of weeks such as this week, there are no copyrights on The Detail content.  As always, the website is open for all to visit!

If you have not yet signed up to receive the Weekly Detail in YOUR e-mail inbox, go ahead and join the list now so you don't miss out!  (To join this free e-mail newsletter, enter your name and e-mail address on the following page: http://www.clpex.com/Subscribe.htm  You will be sent a Confirmation e-mail... just click on the link in that e-mail, or paste it into an Internet Explorer address bar, and you are signed up!)  If you have problems receiving the Detail from a work e-mail address, there have been past issues with department e-mail filters considering the Detail as potential unsolicited e-mail.  Try subscribing from a home e-mail address or contact your IT department to allow e-mails from Topica.  Members may unsubscribe at any time.  If you have difficulties with the sign-up process or have been inadvertently removed from the list, e-mail me personally at kaseywertheim@aol.com and I will try to work things out.

Until next Monday morning, don't work too hard or too little.

Have a GREAT week!