UPDATES ON CLPEX.com

Updated the Fingerprint Interest Group (FIG) page with FIG #54; compression; submitted by Sandy Siegel.  You can send your example of unique distortion to Charlie Parker: Charles.Parker@ci.austin.tx.us.  For discussion, visit the CLPEX.com forum FIG thread.

Updated the forum Keeping Examiners Prepared for Testimony (KEPT) thread with KEPT #30; ACE-V - When Was It Developed?, submitted by Michelle Triplett.  You can send your questions on courtroom topics to Michelle Triplett: Michele.Triplett@kingcounty.gov

Updated the Detail Archives
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we looked at commentary and an article on the origin of the powder rubbing technique.

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Out of the Daubert Fire and into the Fryeing Pan; Self-Acceptance Versus Meta-Expertise and the Admissibility of Latent Print Evidence in Frye Jurisdictions
by Simon Cole
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1023084#PaperDownload

Abstract:

While a fair amount of judicial and scholarly attention has been devoted the admissibility of latent print evidence under the Daubert standard for expert evidence, there has been no evaluation of its admissibility under the Frye standard. This is due the widespread assumption that latent print evidence is obviously admissible under Frye. This, in turn, is based on two assumptions: that latent print individualization is generally accepted in the relevant scientific community and that non-novel evidence is immune to the Frye test.

Both assumptions are shown to be false. The article introduces the concept of metaexpertise to denote scientists and scholars who evaluate the knowledge claims of other experts. An analysis of the state of opinion in the scientific community shows that latent print individualization is not generally accepted. This lack of general acceptance points to a broader issue beyond the admissibility of the evidence: the continuing dramatic disconnect between the legal and scientific communities regarding the validity of latent print individualization.

4. Summary

Based on the evidence assembled in Tables 1-3, a general acceptance analysis of latent print individualization evidence under Frye should be an easy case. As long as a court resists the temptation to allow the practitioner community to self-certify its own knowledge claims, the picture is quite clear. The acceptors include only three scholars, two of whose opinions arguably should be eliminated on the basis of their being too closely interested. The non-acceptors, however, include more than 20 scholars, from a diversity of disciplinary perspectives. While various criticisms might be made of various individuals among the non-acceptors, none applies to all of them, not even the criticism of not being practitioners. In their totality, this group wields a high degree of academic firepower: they include two members of the National Academy of Science, one of the most prestigious honors bestowed in scientists in the United States, the former President of one of the top five research universities in the United States, and some of the legal academy’s most eminent evidence scholars. They include four Harvard degrees (the “acceptor” group also includes one). Although the motives or qualifications of some ofthese individuals may be impugned, the point is that, even the elimination from consideration of a couple of them, still leaves the opinions of some of the others standing. The point here is that proposition that latent print individualization lacks validation seems to be approaching very closely a state in which the weight of scholarly opinion, despite all personal and disciplinary differences, is converging toward a common conclusion. This, it would seem, is precisely what the notion of “general acceptance in the relevant scientific community” was intended to capture.

None of this is to suggest that courts must, as a general rule, deem propositions unaccepted every time they are presented with a petition containing the signature of 25 people with advanced degrees, or that degrees from fancy universities should automatically connote authority. Deference to meta-experts must surely be exercised with caution. However, in this case, the totality of evidence of non-acceptance, combined with the failure of the proponents of the evidence to attract any significant support from any informed observers outside the practitioner community would seem to be a situation that should make a court very uncomfortable about deeming the evidence “generally accepted.”

V. Further Implications

This article has focused on the neglected issue of the admissibility of latent print evidence in Frye jurisdiction. While this should be of importance to those wrestling with the admissibility of latent print (and other forensic) evidence in those jurisdictions, the research reported here has implications that go beyond Frye jurisdictions and go beyond latent print evidence. The process of applying Frye to a single form of evidence has focused our attention on a number of important principles that should apply for Frye analyses of any evidence, including the problems with practitioner-only evidence, the importance of breadth, and the idea of the meta-expert.

A. Implications for Daubert Jurisdictions

As I have noted above, I have turned my attention from Daubert to Frye only reluctantly, due to my strong belief, a belief shared by the overwhelming bulk of legal scholarship on the issue, that latent print individualization evidence does not satisfy any reasonable application of Daubert. Nonetheless, the argument presented here for exclusion of latent print individualization evidence under the Frye rule may yet be of some relevance for consideration of the same evidence under the Daubert standard. Daubert still incorporates the general acceptance standard as one of the five factors designed to limn its “reliability” requirement. Thus, the case presented here demonstrates clearly that latent print individualization evidence fails to satisfy one of the five Daubert factors, and, moreover, it fails to satisfy the factor that it has widely been assumed it would have easiest time satisfying.

B. Frye or Daubert?

Although Daubert is frequently criticized, relatively few scholars, principally Professor Schwartz, have gone so far as to argue that Frye is actually preferable.(228) Should this case study change our view on this question?

I have long argued that, in the understanding of the scientific basis of latent print individualization, Daubert has had a transformative effect.(229) What is probably the principal flaw in the arguments vouching for latent print individualization—the confusion between uniqueness and accuracy that I have labeled the “fingerprint examiner’s fallacy”—was not clearly enunciated until after the Daubert decision.(230) It would not be going too far to suggest that Daubert had a salutary effect on the understanding the scientific basis underlying latent print individualization merely by prompting a renewed look at the evidence after nearly a century of “general acceptance.”

In addition, of course, Daubert’s focus on reliability sharpened the questions that were asked and focused attention of the crucial, and hitherto neglected, issue of validity. That pilot accuracy studies are now being undertaken, after a century of use of the technique in court, may to some extent be ascribed to the influence of Daubert.(231) Thus, the principal merit of Daubert has been symbolic, in compelling various legal system actors to look more closely and more searchingly at many types of evidence that have long been taken for granted. But these searching inquiries have not necessarily generated rigorous admissibility rulings.

As demonstrated above, Daubert’s celebrated vagueness has essentially allowed trial judges free rein to enact their instincts. One undervalued virtue of Frye is that, however vague it may be, it is less vague than Daubert. At some point, the existence of general acceptance becomes difficult to fudge, especially if the principles enunciated above, against practitioner-only acceptance and for breadth, are adhered to. My principal reason for skepticism about Professor Schwartz’s embrace of Frye lay in my sense that it would be too receptive to closed communities, despite Professor Schwartz’s and some courts’ efforts call for a broad interpretation of Frye. It would appear, however, that applying Frye’s notion of the “relevant scientific community” is not necessarily any more difficult than applying Daubrt’s notion of reliability.

This discussion would seem to support the emerging scholarly view that Frye and Daubert are not as different as scholars have previously assumed. Most evidence that fails Daubert should probably fail Frye and vice versa. Indeed, this case study shows that even one of Professor Saks’s prime examples of a technique that satisfied Frye and failed Daubert actually fails Frye too, at least once a community of meta-experts has been constituted.(232) The difficulties appear to lie not so much with which admissibility standard is chosen, but in operationalizing either standard in an even-handed manner.(233)

C. The Clash of the Legal and Scientific Communities

By showing the lack of general acceptance of the validity of latent print individualization, this articles raise a larger issue that transcends the narrow question of legal admissibility: the disconnect between the legal and scientific communities as concerns the validity of latent print individualization. The evidence assembled above clearly demonstrates that members of the scientific community do not accept that the validity of latent print individualization has been established. And yet, paradoxically, not a single court has endorsed this view. To the contrary, courts have tended to uphold the admissibility of latent print individualization with ringing pronouncements about its validity. As I have noted elsewhere, these pronouncements have come to stand in for scientific validation when proponents of latent print individualization are called upon to justify their claims.(234) Indeed, courts have essentially become the “relevant scientific community” for latent print evidence, a fact they sometimes inadvertently acknowledge when they discuss “general acceptance” as if were something conferred by courts themselves, rather than by an external expert community.(235) What might “acceptance” in the “judicial” community mean, other than following precedent? Such reasoning turns a Frye analysis into an exercise in following legal precedent, rather than the referral to an external expert community that stands at the heart of Frye. Moreover, courts’ upholding of the admissibility of latent print evidence has required them to essentially deem irrelevant the views of the scientific community.

It is difficult to think of comparable examples of scientific issues upon which the legal and scientific communities stand in such stark and dramatic disagreement. Will courts continue to hold out against the view of the scientific community? Will the scientific community become more aggressively interventionist? The recent formation of a panel on forensic science by the National Academies, the most prestigious and credible scientific organization in the United States, raises the possibility of a more forceful intervention on behalf of the scientific community. But whether and to what extent the panel will directly address the issue of validity remains to be seen.

228 Schwartz, supra note X.
229 Simon A. Cole, Jackson Pollack, Judge Pollak, and the Dilemma of Fingerprint Expertise, in Expertise in Regulation and Law 98 (Edmond ed., 2004).
230 David A. Stoney, Fingerprint Identification: Scientific Status, in Modern Scientific Evidence: The Law and Science of Expert Testimony 55 (Faigman, et al. eds., 1997); Fred Woodworth, A Printer Looks at Fingerprints, The Match! 36, (Winter, 1997).
231 Kasey Wertheim et al., A Report of Latent Print Examiner Accuracy During Comparison Training Exercises, 56 J. Forensic Identification 55 (2006).
232 Michael Saks, Merlin and Solomon: Lessons from the Law's Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069 (1998).
233 D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99 (2000); Susan Haack, Trial and Error: The Supreme Court's Philosophy of Science, 95 Am. J. Pub. Health S66 (2005); Margaret A. Berger, What Has a Decade of Daubert Wrought?, 95 Am. J. Pub. Health S59 (2005).
234 Simon A. Cole, Grandfathering Evidence: Fingerprint Admissibility Ruling from Jennings to Llera Plaza and Back Again, 41 Am. Crim. L. Rev. 1189 (2004).
235 United States v. Crisp, 324 F.3d. 261, 268 (4th Cir. 2003). (discussing “general acceptance, not only in the expert community, but in the courts as well.”); Id. at 269 (referring to “the consensus of the expert and judicial communities that the fingerprint identification technique is reliable.”); Megan J. Erickson, Daubert's Bipolar Treatment of Scientific Expert Testimony--From Frye's Polygraph to Farwell's Brain Fingerprinting, 55 Drake L. Rev. 763, 809 (2007). (“The courts willingly overlook the subjectivity inherent in latent fingerprint evidence testimony because of what the court considers to be its own ‘general acceptance’ (even if ‘general acceptance’ means within the judicial community, rather than scientific community)”.).

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KEPT - Keeping Examiners Prepared for Testimony - #30
ACE-V - When Was It Developed?
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 – ACE-V:

How long has ACE-V been the methodology?

Possible Answers:

a)      This is the way we’ve always made our identifications.

b)      David Ashbaugh developed ACE-V in the 1980’s.

c)      Roy Huber developed ACE-V in the 1950’s.

d)     ACE-V is synonymous with the scientific method of hypothesis testing, which has been tested and used for hundreds of years.

Discussion:

Your answer will be determined by your understanding ACE-V and how you use it.  Different answers become a problem when multiple people are testifying in the same case.  When this happens, it may appear that one examiner either doesn’t understand the methodology or that the examiners are using different methodologies.  As a result, jurors may give less weight to other elements of the testimony.

Answer a:  ACE-V may be the methodology that’s always been used but some people think this answer is a bit over exaggerated.  Since ACE-V wasn’t articulated, how could it have been used methodically or correctly?  Another topic for discussion regarding this answer is the use of the term ‘identification’ vs. using the term ‘individualization’ (but that’s a topic for another discussion).

Answer b:  David Ashbaugh didn’t develop ACE-V but he did introduce it to the fingerprint profession in the 1980’s.  David Ashbaugh also created the full acronym.

Answer c:  Roy Huber didn’t develop ACE-V as a methodology but he articulated words to describe the methodology that was being used.  He called this ACE with Verification.

Answer d:  Some people use ACE-V as a simplified version of the scientific method of hypothesis testing and other people use it in the strictest sense.  Those who use it in the most rigorous application can claim that it has been tested and used for hundreds of years.  In order to state this answer, examiners should be able to explain why ACE-V is synonymous with hypothesis testing.

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