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Breaking NEWz you can UzE... |
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Kasey Wertheim |
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cold case turns hot
Santa Rosa Press Democrat, CA - Oct 2, 2008
He learned that the victim's clothing, a rope believed to have been used to strangle her and fingerprints lifted from her car had never been submitted to ...
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UPDATES
ON CLPEX.com
Updated the Fingerprint Interest Group (FIG) page
with FIG #64; a subtle double-tap; submitted by Sandy Siegel of Texas. 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 #38; Court Cases - Lost Daubert Challenges,
submitted
by Michelle Triplett. You can send your
questions on courtroom topics to Michelle Triplett:
Michele.Triplett@kingcounty.gov
Updated the Detail Archives
_________________________________________
we looked at an article by Michael Saks from a recent
edition of the Tulsa Law Review entitled "Symposium: Daubert,
Innocence, and the Future of Forensic Science".
we look at a recent order, testimony and prosecution
argument in a Minnesota Frye-Mack hearing on latent print admissibility.
Josh Bergeron testified as the examiner of record and did an outstanding
job, along with Glenn Langenburg and Cedric Neumann, of shutting down Simon
Cole as the sole defense witness. At one point, Simon Cole even
shrugged, held his hands up, and said "I've got nothing." Josh will be
talking about his unique approach to his testimony through multiple venues,
including at his upcoming Ridgeology Science Workshop in Indianapolis
Indiana, November 17-21, 2008. Not only will students get the benefit
of challenging comparisons at their own level (the course uses the
16-difficulty level exercises previously used by Pat Wertheim, Kasey
Wertheim, and Glenn Langenburg), but attendees get the added benefit of
hearing from Josh how Minnesota came out ahead in their state Daubert-like
("Mack") challenge to the science of fingerprints. If you haven't had
continuing education this year, the course in November would be an excellent
one to request - not often does an opportunity come along to get such fresh,
pertinent information "from the horse's mouth" on recent events in our
discipline. Just contact Bonnie@foridents.com (888) 235-1230 to reserve your spot in the course
before it fills up.
_________________________________________
MN v. Hull
A Frye-Mack hearing
ORDER
Dated 9/30/08
1. Defendant’s Motion to Exclude Fingerprint Analysis is DENIED
2. The offered memorandum is hereby incorporated by reference and made part
of the Order:
MEMORANDUM
On August 28, 2008, the above-entitled matter came on for a Frye-Mack
hearing. The Frye-Mack test has two prongs. Under the first prong, “a novel
scientific technique that produces evidence to be admitted at trial must be
shown to be generally accepted within the relevant scientific community.”
... Under the second prong, the particular evidence derived from the
technique and used in an individual case must have a foundation that is
scientifically reliable. “Put another way, the Frye-Mack standard asks first
whether experts in the field widely share the view that the results of
scientific testing are scientifically reliable, and second, whether the
laboratory conducting the tests in the individual case complied with
appropriate standards and controls.” (citing State v. Jobe, 486 N.W.2 d407
(Minn. 1992)).
At the start of the hearing, the State moved that the issues at the hearing
be limited to the second prong of the Frye-Mack standard. The Minnesota
Supreme Couft has recognized that fingerprint identification evidence is
“not a novel or emerging type of scientific evidence” and is routinely used
to prove that a particular person was present at a particular place or did a
specific act. State v. Hodgson, 512 N.W.2d 95,98 (Minn. 1994). For that
reason, the Court granted the State’s motion to limit the issues at the
hearing to the second prong of the Frye-Mack standard. Therefore, the issue
before the Court is whether the laboratory conducting the test in this case
complied with the appropriate standards and controls.
Joshua W. Bergeron, a Certified Latent Print Examiner (CLPE), certified by
the International Association for Identification (IAI) since 2001, was
called as an expert witness by the State. …
Glenn Langenburg also testified as an expert witness for the State. …
The State’s third expert witness was Dr. Cedric Neumann. …
The defense called Dr. Simon Cole as their expert witness. …
The court finds the testimony of Joshua Bergeron, Glenn Langenburg and Dr.
Cedric Neumann more credible than that of Dr. Cole. Dr. Cole testified that
he is not a certified latent print examiner and he has never done research
on actual latent prints nor has he done a validation study. He is a law
professor who has read the literature. The State’s experts convinced the
Court that the procedures used at the BCA are reliable and adequately ensure
that the chances of an improper identification are small.
The Court agrees with Dr. Cole that further studies relating to validity
should be conducted. However, his testimony was not persuasive given the
fact that he has never performed research in the actual field while the
State’s witnesses provided to the Court studies which had been performed
providing some validation to latent print examination.
The Second prong of the Frye-Mack standard asks whether the laboratory
conducted the tests in the individual case complied with appropriate
standards and controls. The defense did not challenge the compliance of the
BCA with the appropriate standards and controls and did not provide any
evidence that the BCA failed to comply with those standards and controls.
The State’s expert who examined the prints established that he and others at
the BFC followed all of the applicable standards and controls when
performing their examinations. The State’s experts also testified that the
latent print identifications were verified by other independent examiners as
well.
The Court finds that fingerprint evidence is reliable and the examination in
this matter complied with appropriate standards and controls. The Court
denies the defendant’s Motion in Limine and the fingerprint analysis will be
allowed to be admitted into evidence.
Just 2 weeks prior, the argument was heard in MN District Court:
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF MILLE LACS SEVENTH JUDICIAL DISTRICT
State of Minnesota,
Plaintiff,
vs.
Jeremy Jason Hull,
Defendant.
Court File No. CR-07-2336
Case Type: Criminal
STATE’S POST-HEARING FINGERPRINT FRYE-MACK MEMORANDUM
The above-entitled matter came before the Honorable Steven A. Anderson,
Judge of District Court of Mille Lacs County, for a Frye-Mack Hearing on
August 28, 2008. The defendant filed a Motion In Limine trial on the basis
of Frye-Mack. seeking exclusion of fingerprint evidence at trial.
At the beginning of the hearing, the State moved that the issues at the
hearing on the defendant’s Motion In Limine regarding fingerprint evidence
be limited to the second prong, or Mack prong, of the Frye-Mack standard.
The court granted the State’s Motion and limited the issues to those of
foundational reliability under the Mack prong, of the Frye-Mack standard.
FACTS
At the hearing the State called Joshua Bergeron, Glenn Langenburg, and Dr.
Cedric Neumann. The defendant called Dr. Simon Cole, a professor of Social
Ecology.
I. JOSHUA W. BERGERON, CERTIFIED LATENT PRINT EXAMINER.
Joshua W. Bergeron (Bergeron) testified as the latent print examiner who
completed the examination of the fingerprints in this case. Bergeron is a
Certified Latent Print Examiner (CLPE) by the International Association of
Identification (IAI) since 2001.
Bergeron testified that:
to become a CLPE he underwent a multi-year process, including competency
testing;
since he began employment at the BCA, he has completed between 200-300 ACE-V
examinations per year with respect to fingerprint evidence;
as a scientist, his educational background includes a Bachelor of Arts in
Chemistry, and one semester in the Masters Program at Iowa State University
in forensic quantitative analysis;
he teaches basic and advanced latent print courses, has conducted research
and validation studies regarding various methods used in latent print
examination, and teaches courses on ridgeology around the country;
he has presented on numerous topics in latent print examination, and
published in the Journal of Forensic Identification;
the Minnesota Bureau of Criminal Apprehension (BCA) is an accredited crime
laboratory, and is thoroughly evaluated every five years;
the BCA is accredited by the American Society of Crime Laboratory Directors
(ASCLD) and has been accredited as satisfactory at least since 1994 to the
present;
that latent print examiners, including him, undergo proficiency testing by
an outside agency on an ongoing yearly basis;
that it is a proficiency test of the individual latent print examiner
through the Analysis, Comparison, Evaluation, and Verification process
(ACE);
that he has passed all proficiency testing since he began, and the 2007
result is pending;
that testing is open to anyone who pays for the test;
the BCA Latent Print Section uses standard Methods of Analysis (MLP’s)
regarding analysis of latent prints;
that as a member of the Latent Print Section of the BCA, he followed
MLP-004-B, and followed all other relevant MLP’s refer to ACE-V,
qualitative/quantitative examination;
that MLP-004-B was generated using SWGFAST standards and guidelines that are
considered the standard in the United States for analyzing latent prints;
the BCA also follows a large number of Standard Operating Procedures
(SOP’s), which, along with the MLP’s are based on and follow SWGFAST
guidelines;
the BCA adheres to the SWGFAST guidelines pertaining Training to Competency
for Latent Print Examiners, Friction Ridge Examination Methodology for
Latent Print Examiners, Standards for Conclusions, and Quality Assurance for
Latent Print Examiners;
SWGFAST is a group of approximately 40 scientists and latent print examiners
who develop standards and guidelines for the latent print profession;
SWGFAST Guideline pertaining to Friction Ridge Examination Methodology for
Latent Print Examiners describes the fundamental principles - unique skin
morphology, that the arrangement of friction ridges is permanent, that an
impression of the unique details of friction ridge skin can be transferred
during contact with a surface, that an impression of sufficient quality and
quantity can be identified to or excluded from a source, and that the
determination of “sufficiency” is the opinion of the examiner;
SWGFAST guideline describes the method for friction ridge examinations as a
recurring application of Analysis, Comparison, Evaluation and Verification
(ACE-V), and a detailed description of the process;
the Standards for Conclusions are detailed in a separate SWGFAST guideline,
and includes descriptions of identification, exclusion, and inconclusive;
All the conclusions must be reproducible conclusions;
he followed all the MLP’s, the SOP’s, and the SWGFAST guidelines in making
the conclusions in which he identified the four fingerprints on item 134a, a
note found on the east side of the victim’s place of business, as Hull’s
right thumb fingerprint, right index fingerprint, right little fingerprint,
and left middle fingerprint;
the ACE-V method conducted in Exhibits 36 and 53 fully complied with all
MLP’s, SOP’s, and SWGFAST guidelines;
when he begins the ACE-V method, as he did in this case, he begins with an
analysis of the unknown print;
he begins by examining the first level detail, which is pattern recognition
including whorls, loops, and arches;
he then examines the second level detail by magnification. The second level
detail includes points, breaks in ridge endings, bifurcations, or dots;
he enlarges the second level detail again, which reveals more information
regarding ridge details and pores (this is known as level three detail);
he looks for sufficiency, red flags, and possible areas of distortion;
he documents the analysis portion of the method;
he evaluates level three detail when present;
he then completes the comparison stage, where the compares the known or
exemplar print is compared, side by side to the latent print;
he then completes the evaluation stage by reaching a conclusion and writing
up the final report;
the verifier then goes through the same process separately, which is
referred to as the verification stage;
at the discretion of the latent print examiner, during the verification
stage of the ACE-V method of latent print examination, the verification can
be done as a blind review;
this would be based on the presence of more than one of the following
factors including the quality of the print, a single latent print
identification in the case, a very high profile crime, or a crime of
violence;
in this case with respect to Hull, although it was a homicide, the prints
were of good quality, there were multiple identifiable prints, and the
prints existed on multiple items described in the reports;
this was not an AFIS hit (an identification resulting from a cold search in
a large fingerprint database);
all identifications are verified during the ACE-V method, and 100 percent of
identifications go through a technical and an administrative review;
A technical review is the review by another latent print examiner of the
notes, methods, documentation, and verification of the examiner;
An administrative review is completed by an administrative person to examine
spelling, grammar, and chain of custody;
10 percent of all cases, including inconclusive and exclusions, are peer
reviewed in addition to going through the ACE-V method - are randomly
selected for 100 percent peer review where the entire case is reworked –
that these are quality assurance mechanisms, implemented for the purpose of
reducing or limiting the possibility of error;
the BCA is at the cutting edge of research on latent fingerprint
examination;
Glenn Langenburg of the BCA Latent Fingerprint section has completed a
number of published studies regarding the ACE-V method;
the BCA has conducted a method performance study that shows that the ACE-V
method can be performed reliably and accurately;
research studies with respect to bias conducted by the BCA through Glenn
Langenburg show that there is a “bias effect” but in a surprising way - when
examiners felt pressured by biasing information, participating examiners
tended to resist the bias by providing a conservative inconclusive result
rather than an erroneous identification;
each latent print examiner at the BCA approaches the verification stage with
the mind set to prove the ACE examiner wrong (contrary to the assertion of
the defendant that all latent print examiners claim infallibility or that
they would never contradict a colleague).
II. GLENN LANGENBURG.
Glenn Langenburg (Langenburg) testified on behalf of the State in rebuttal
to the defendant’s social ecologist Dr. Simon Cole. Langenburg has been a
CLPE since 2003. Langenburg testified that:
as a scientist he is the lead technical scientist for the BCA Latent Print
Laboratory, possesses a Bachelor of Science in Forensic Science, a Masters
of Science in Analytical Chemistry, and is a PhD. candidate at the
University of Lausanne, Switzerland in forensic science;
he is a member of the IAI, the Canadian Identification Society (CIS), a
fellow with the Fingerprint Society of the United Kingdom, and an elected
member of SWGFAST since 2004;
SWGFAST is the organization that sets the guidelines for the latent print
community;
he was awarded the Distinguished Member of the IAI award in 2007, and has
been on the editorial board for the Journal of Forensic Identification since
2006;
Unlike the defendant’s paid social science expert, Dr. Cole, Langenburg has
conducted peer reviewed, and published studies with respect to latent print
examination - Pilot study: A Statistical analysis of the ACE-V
Methodology-the Analysis Stage, Journal of Forensic Identification 54 (1)
(2004) (Attachment A); A Report of Latent Print Examiner Accuracy During
Comparison Training Exercises, Journal of Forensic Identification 56 (1)
(2006) (Attachment B); Scientific Foundations of Friction Ridge
Examinations, Chapter 15 in Friction Ridge Examination Source Book,
McRoberts, A; Fitzpatrick, F. (in press) (2008); Testing for Potential
Contextual Bias Effects During the Verification Stage of the ACE-V
Methodology When Conducting Fingerprint Comparisons, accepted for
publication July 2008, Journal Forensic Science, (in press) (Attachment C);
and A Method Performance Pilot Study: Testing the Accuracy, Precision,
Repeatability, Reproducibility, and Biasability of the ACE-V Process,
accepted for publication, Journal Forensic Identification (August 2008)
(publication not available at this time);
while employed with 3M, he designed and completed validation studies;
he is a member of the Community Faculty at Metropolitan State University,
and was an Adjunct Faculty member at Hamline University;
as a CLPE, he has undergone external proficiency testing by CTS and passed
every year since 2001;
he concurred with Bergeron that their proficiency testing for 2007 is listed
as pending because he and Bergeron opined that it was an inconclusive
result, but that it was based on the poor quality of the testing material in
that they did not have the digital image of the print, so they erred on the
side of caution;
he agreed with Bergeron that many other labs received the digital images,
which make a dramatic difference in the whether the print is suitable for
comparison;
the conclusions from the application of ACE-V fingerprint examinations can
be reliable and the identification decisions of CLPEs are accurate precise,
repeatable, and reproducible;
as in all human endeavors, there is the potential for error;
of all the years of latent print examination, only two dozen or so
nationally reported cases of erroneous identifications made it through the
verification stage of the ACE-V process;
he, along with the assistance of other scientists, CLPEs, and the BCA, have
systematically evaluated the ACE-V method over the past few years;
he completed a research study of the analysis stage of the ACE-V method,
which demonstrated there was a statistically significant difference between
examiners and a control group (the control group had no training or
experience in latent print comparison) in the mean number of minutiae
reported. See Pilot study: A Statistical analysis of the ACE-V
Methodology-the Analysis Stage, Journal of Forensic Identity 54 (1) (2004) -
In other words, CLPE’s do what they say they can do;
recent research conducted by Schiffer and Champod shows that the analysis
stage of ACE-V is particularly robust in its resistance to contextual bias.
See The Potential (Negative Influence of Observational Biases At the
Analysis Stage of Fingermark Indivdualisation. Forensic Science
International, (June 2006);
he completed a research study, along with co-authors Kasey Wertheim and Andre
Moenssens, of latent print examiner accuracy during the comparison stage of
the ACE-V method. See A Report of Latent Print Examiner Accuracy During
Comparison Training Exercises, Journal of Forensic Identification 56 (1)
(2006) (Attachment B). During comparison training exercises, data was
collected from 108 participants. The participants were divided into groups
by skill level, including a group with minimal training or experience. The
data was separated between the groups with more than one year of experience,
and the rest with less than one year of experience. The 92 participants with
more than one year of experience made 5861 identifications, of which 5800
were correct and 61 of these were one of two types of error - 59 were
clerical in nature and 2 were erroneous identifications. This resulted in an
erroneous identification rate of .034 percent and a clerical error rate of
1.01 percent for participants with more than one year of experience. The
authors noted this did not include the V stage. Langenburg and the other
authors then followed-up on the experiment by using 16 participants to serve
as verifiers to the previous participants results. The 16 verifiers did not
verify any of the errors given to them in the exercises. The study showed
that although errors can happen, through the vigorous use of ACE-V, and
training, the potential for error is further reduced by the application of
the quality control measure of the Verification stage of ACE-V;
these significantly small error rates were similar to those reported by Dr.
Steven Gutowski. See Error Rates in Fingerprint Examination: The View in
2006, The Forensic Bulletin, Autumn (2006) - Gutowski reported the error
rates of the Victoria Police Forensic Science Department on CTS proficiency
tests between 2000 and 2005. Gutowski indicated that, although error rates
are difficult to measure estimates vary between .02 percent and .38 percent,
depending upon the model. Gutowski’s findings agreed with Langenburg’s
testimony in this case and his co-authored paper above that the vast
majority of errors are clerical errors. Gutowski’s findings also agreed with
Langenburg’s testimony and in this case and his co-authored paper above that
while the experts, and courts, should be aware of error rates in general,
the main issue is not the general error rate but whether significant error
has been made in this case;
he (Langenburg) also completed a study and peer reviewed article regarding
the potential for contextual bias during the V stage of ACE-V. See Testing
for Potential Contextual Bias Effects During the Verification Stage of the
ACE-V Methodology When Conducting Fingerprint Comparisons, accepted for
publication, Journal Forensic Science, (July 2008) - Latent print examiner
participants were separated into three groups - a control or no bias group,
a low bias group, and a high bias group. The same three bias groups were
established with laypersons. Langenburg testified, and his research shows,
that fingerprint examiners can be influenced by contextual information, but
not generally towards making erroneous identifications, but towards the more
conservative position of inconclusive or exclusions. On the other hand
layperson participants were far more influenced by bias conditions, and
tended to make incorrect identifications;
that while blind testing during the V stage of verification may be helpful,
it would best be most effective in complex cases;
he completed a method performance study regarding the ACE-V process, which
has recently been accepted for publication in a peer reviewed journal. A
Method Performance Pilot Study: Testing the Accuracy, Precision,
Repeatability, Reproducibility, and Biasability of the ACE-V Process,
accepted for publication, Journal Forensic Identification (August 2008).
Langenburg stated the model for the method performance study was a
validation study that he used repeatedly at 3M. The method performance study
was conducted under controlled conditions where the true source of the
latent print was known. Langenburg testified that six fingerprint analysts
participated in a series of tests to measure the accuracy, precision,
reproducibility, repeatability, and biasability during 60 ACE and 60 ACE-V
trials. Langenburg testified that the ACE testing showed 100 percent
accuracy for all trials where an opinion of identification was reported. The
ACE-V trials demonstrated 100 percent accuracy to all trials where an
opinion of identification was reported. Langenburg testified that with
respect to opinions of identification, the results showed a high-degree of
accuracy. The verifiers caught all nine false positive (erroneous
identifications presented to them), including close non-matches that were
presented by a trusted colleagues. Langenburg testified that this
demonstrated a strong resistance to bias with respect to identifications,
but a high degree of bias towards exclusions during non-blind procedures.
Finally, Langenburg testified that he also obtained, and has analyzed all
the CTS testing data from proficiency tests performed from 1995 to the
present. Langenburg testified that there were roughly 50,000 decisions made
by participants with only 234 false positives. Of the 234 false positives,
approximately 134 could easily be classified as “failure to follow
directions” or clerical errors (i.e. transcription errors). Langenburg
testified that of the remaining 100, only 38 appeared to him (after
examining the original material) as clear erroneous identifications. Thus,
approximately 38 out of approximately 50,000 identifications were erroneous.
Langenburg opined and testified from first hand knowledge and scientific
experience that:
the ACE-V process is reliable, reproducible, and repeatable;
although there may be some disagreement whether his method performance study
is a validation study, even though it is based on a model validation study,
reliability is determined by other evidence including research, error rates,
proficiency tests, quality control, empirical observations, training, and
case work;
if errors were being made at relatively high rates, there would be multiple
and routine conflicts pertaining to fingerprint identifications;
Based on all of this evidence Langenburg testified that latent fingerprint
examination is reliable and generally accepted by experts in the relevant
field.
III. DR. CEDRIC NEUMANN.
Dr. Cedric Neumann testified on behalf of the State in rebuttal to the
defendant’s Social Ecologist Dr. Simon Cole.. Dr. Neumann received his PhD
in forensic science (magna cum laude) from the Ecole des Sciences
Criminelles, University of Lausanne Switzerland. Dr. Neumann also has both a
Masters of Science and a Bachelor of Science from the same institution. Dr.
Neumann is a Senior Forensic Scientist, and the scientific manager of R&D
Statistics and Interpretation for the Forensic Science Service (FSS) in
Birmingham, United Kingdom. Dr. Neumann testified that:
The FSS is the national lab for the Untied Kingdom;
his focus is on the field of statistics, probability, and subjectivity;
his core research areas are: transparency of the fingerprint identification
decision-making process, statistical modeling of fingerprint evidential
value, standardization and auditing of the ACE-V process, and integrated
intelligence platforms;
he is not only a scientist, but a fingerprint reporting officer for the
Forensic Science Service in courts in the United Kingdom;
he has numerous, peer-reviewed publications regarding fingerprint
identification;
he is currently completing a validity study to assess the accuracy of a
statistical model of the ACE-V method used by the BCA and this study is
being completed under a grant issued by the United States;
this model will give statistical probability figures for fingerprint
evidence, similar to what is now seen in the field of DNA;
he is an elected member of SWGFAST, a member of the IAI, and a member of the
editorial board of the Journal of Forensic Identification, a member of the
American Academy of Forensic Science, and the European Network of Forensic
Science Institute-Fingerprint Working Group;;
the method used by the BCA, and the process of using level 1, 2, and 3
detail has very strong statistical support and the fingerprint
characteristics are highly discriminatory features;
the use of ACE-V by the BCA is the current state of the art method, and the
opinion of Bergeron as to identification is entirely accurate in that it
complies with SWGFAST, and the fingerprint field;
his work is centered on the problem of tackling how discriminating a print
is and the likelihood of someone else having a matching print to the
identified source of the print;
the defendant’s position that any forensic science that is subjective is
wrong misses the point;
any scientific model is based in part on subjectivity, and assumptions by
humans at some point in the process;
such subjectivity is always present in every statistical model developed;
it is more an issue of transparency, and that although the decision making
aspects of ACE-V are not completely transparent, it does not negate or
minimize the accuracy and reliability of ACE-V - The issue of transparency
does not invalidate the results.
IV. DR. SIMON COLE.
Dr. Simon Cole was called as an expert by the defendant. Dr. Cole testified
that:
he is a professor in the School of Social Ecology, which is in the field of
interdisciplinary social sciences;
he is not an expert on fingerprint identification and he is not a CLPE;
he is not a statistician, nor does he have a background in that field;
he has published on legal admissibility, and that he essentially performs
“studies of studies.” - “I don’t do research on latent prints.”;
he has never done a validation study;
the stated mission of his University was not only to criticize, but to
develop interventions to solve society’s problems. Yet, when asked on
cross-examination why he had not even attempted a validation study for
fingerprint evidence, he admitted that he had not bothered to examine
interventions in the form of validation studies because he was “too busy.”
Dr. Cole even admitted that certain fields, or topics, according to his
understanding, are not subject or amenable to validation studies;
his expertise is in the study of “legal arguments,” and is primarily related
to the Daubert standard, which is not followed in Minnesota;
conceded that the purpose of his testimony, lecturing, and writing was to
advocate for a change in the legal standard pertaining to the admissibility
of forensic evidence (that the very purpose of his testimony was to advocate
for a change in the legal standard governing the admissibility of
fingerprint evidence in Minnesota);
has written in a recent publication that he is a “meta-expert” or an “expert
on expertise.”;
only experts on experts, like Prof. Mark Denbeaux and him, are qualified to
offer an opinion regarding particular subjects, not experts in the relevant
field;
he objects to fingerprint examiners offering “individualization” of
fingerprints to particular suspects because, in his lay opinion that is not
possible (he did not offer an opinion on identification as described by
Bergeron, Langenburg, and Dr. Neumann);
conceded that friction ridge detail is unique and permanent;
there are no validation studies to support the reliability of ACE-V or
individualization;
appeared to contradict himself and testified that studies do show ACE-V is
accurate but they don’t show that they “are always accurate.”
ARGUMENT
This case presents absolutely nothing new or novel regarding fingerprint
evidence. For a century, Courts have recognized the completely unremarkable
proposition that the scientific community generally accepts fingerprint
identification as generally reliable and accurate. Contrary to defendant’s
assertions, the Minnesota Supreme Court has recognized that fingerprint
identification evidence is “not a novel or emerging type of scientific
evidence” and is routinely used to prove that a particular person was
present at a particular place or did a specific act. State v. Hodgson, 512
N.W.2d 95, 98 (Minn. 1994). Fingerprint identification evidence is
unquestionably not new or novel it has been generally accepted for years
across the state, the country, and the world. Part one of Minnesota’s
Frye-Mack test is satisfied.
Part two of Minnesota’s Frye-Mack test involves the question whether “the
laboratory conducting the tests in the individual case complied with
appropriate standards and controls.” State v. Roman Nose, 649 N.W.2d 815,
819 (Minn. 2002). As the Court ruled at the beginning of the hearing, the
Mack prong is the appropriate focus of the inquiry. Nonetheless, a brief
review of this prong shows the defendant’s challenge completely fails.
I. FINGERPRINT EVIDENCE IS GENERALLY ACCEPTED AS RELIABLE AND ACCURATE IN
THE FEDERAL AND STATE COURTS, THE BROAD COMMUNITY, AND MOST RELEVANTLY IN
FIELD OF FORENSIC IDENTIFICATION.
A. Latent Print Examiners, As Well As Members Of SWGFAST. Make Up The
Relevant Scientific Community.
B. Fingerprint Comparison Evidence In General And The ACE-V Methodology In
Particular Is Generally Accepted In The Forensic Identification Field As
Reliable And Accurate.
C. The Lack Of A Validation Study Does Not Negate The Reliability Of The
ACE-V Methodology.
D. Specific Instances Of Misidentification By Other Forensic Labs Or
Examiners Are Not Relevant And Should Not Result In The Daubertization Of
Minnesota.
1. The Mayfield Case.
2. State v. Rose, Case # K06-0545 (Balt. County Circuit Ct.).
3. State v. Langill.
In short, part one of the Frye-Mack standard is met. Fingerprint
identification is generally accepted in forensic identification field as
reliable and accurate.
II. THE FINGERPRINT IDENTIFICATIONS IN THIS CASE WERE DEVELOPED IN
COMPLIANCE WITH APPROPRIATE STANDARDS AND CONTROLS.
A. SWGFAST Guidelines Are The Appropriate Standards And Controls Applicable
To This Evidence.
B. It Is Uncontested That Examiner Bergeron Compiled With Appropriate
Standards And Controls.
CONCLUSION
The State of Minnesota respectfully requests that defendant’s Motion In
Limine be denied.
Dated: September 17, 2008 Respectfully submitted,
LORI SWANSON
Attorney General
State of Minnesota
ERIC SCHIEFERDECKER
Assistant Attorney General
Atty. Reg. 0262249
NOAH A. CASHMAN
Assistant Attorney General
Atty. Reg. No. 200268
445 Minnesota Street, Suite 1800
St. Paul, Minnesota 55101-2134
(651) 215-1730 (Voice)
(651) 282-2525 (TTY)
ATTORNEYS FOR PLAINTIFF
STATE OF MINNESOTA
_________________________________________
KEPT
- Keeping Examiners Prepared for Testimony - #38
Quality Assurance Measures
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 – Court Cases:
How many court cases do you know of where the
fingerprint evidence was omitted?
Possible Answers (as of July 2008):
a)
I don’t know of any.
b)
I know that some Daubert challenges have been won but I
don’t know the specifics behind the cases.
c)
- There was a case in the Virgin Islands (Virgin
Islands
v Austin Jacobs) where the fingerprint evidence was omitted because the
prosecutor never gave the defense the information they asked for.
- In the Plaza case (United States v
Plaza) the judge ruled that the examiner could testify but not state a
conclusion. The judge in this case later reversed his own
decision.
- In the Patterson case (Commonwealth of
Massachusetts v Terry Patterson) the
evidence was omitted due to the use of simultaneous impression.
- In the State of
New Hampshire v Richard Langill, the evidence
was omitted but then overturned at the Supreme Court level.
The issues in this case had to do with the lack of blind verification
and the lack of contemporaneous notes. The state Supreme
Court noted that these measures were above normal standards so the lack of
doing them didn’t hurt the integrity of the conclusions.
- In State of
Maryland v. Bryan Rose, the judge omitted the
fingerprint evidence but then the Federal prosecutor took over the case.
As of July 2008, this case was still being challenged in the court
system.
Those are all of the cases that I’m aware of.
Discussion:
This type of question would probably never be asked
during testimony but it could be asked during a pre-court interview.
The important part of this question is to know that most cases that
have lost Daubert challenges were due to specific situations that may not
apply to your case and most cases that lost Daubert challenges were later
overturned. Many critics state that several cases have
lost challenges. This may be true but most of these
weren’t due to reliability issues.
_________________________________________
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