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Monday, May 18, 2009

The purpose of the Detail is to help keep you informed of the current state of affairs in the latent print community, to provide an avenue to circulate original fingerprint-related articles, and to announce important events as they happen in our field.
Breaking NEWz you can UzE...

by Stephanie Potter

Lawrence man Robert Grey guilty of raping KU student in 1997
Lawrence Journal World - Lawrence,KS,USA 05-09-09
Grey, who had been arrested on an unrelated charge in Johnson County, was required to submit his fingerprints. Finally there was a match in the FBI's ...

Plugging Holes in the Science of Forensics
New York Times - United States May 11, 2009
But perhaps the most damning conclusion was that many forensic disciplines — including analysis of fingerprints, bite marks and the striations and ...

CRIME: Town man charged in Falls bank heist
Tonawanda News - North Tonawanda,NY,USA
“I don't know how my fingerprints got on the note. I don't know how.” The fingerprints on the note and door matched Simmons' prints in a state law ...

Five arrested in 1995 University City slaying
San Diego Union Tribune - San Diego,CA,USA May 13, 2009
Fingerprints collected in the Nov. 14, 1995, stabbing death of David F. Hessler outside his home did not immediately lead to the killer, police said. ...

Sonora woman charged in three San Mateo County bank heists
Tri Valley Herald - Walnut Creek,CA,USA May 13, 2009
When police analyzed it, they allegedly found Eva Sharp's fingerprints on it. She was booked into San Mateo County jail on March 25. ...

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Updated the Detail Archives

Last week

We looked at some banter on the issue of a single discrepancy.

This week

we read highlights from a May 13th hearing before the House Subcommittee on Crime Terrorism and Homeland Security on the National Research Council's Publication "Strengthening Forensic Science in the United States: A Path Forward". Although every effort was made to be as thorough as possible, and in some cases exact translation is presented, the transcription below is provided for information purposes to highlight general points and is not intended to represent a word-by-word narrative that captures each specific point made by each participant. This narrative should not be cited, and interested readers of this text who are going to reference the material or report to others on the hearing besides simply forwarding this transcription and disclaimer are encouraged to watch the webcast or request official transcripts when available from the U.S. House of Representatives.

*Added 5/18/09 - Link to the full transcript, provided by Stephanie Page, Senior Trial Counsel, Public Defender Division, Committee for Public Counsel Services, Boston, MA. 1.5MB


House Subcommittee Hearing on the NRC Publication from the NAS study.


Mr. David Scott (Va.), Chairman, Subcommittee Chairman

Overview of forensic science

Overview of commissioning of the NAS study

Overview of study results

Overview of what NIFS would be if it went forward

Introduction of Texas Judge Gohmert

Welcomed witnesses

 Overview of study results

 The study’s findings have caused considerable concerns in the legal community.

 Numerous defense counsels are citing the NAS report findings in post-conviction motions and appeals and pending trials challenging what they feel is questionable “ballistics” testimony.

 An important point that was not brought out in the study is “The belief that particular forensic disciplines have not been validated does not mean that they are invalid or unreliable but simply that more research needs to be done to validate them.”

 The study documents a fragmented forensic community in need of oversight and governance.

 He questioned the need for a new agency citing previous examples of this as an extremely "costly and complex endeavor with moderate success."

 The report had very little insights on the downsides of creating such an entity.

 He thought this was taken care of years ago by the Supreme Court: decision that "the Judge in the case would be the gatekeeper” - witnesses couldn't bring in scientific evidence and a supposed scientist unless the judge found that they met the requirements as set up by the Supreme Court for legal sufficiency.

 But recognized the distinguished panel of experts and I looked forward to hearing from them on the issue.


Witness List


Kenneth Melson

Acting Director Bureau of Alcohol, Tobacco, Firearms and Explosives

Former Director, Executive Office for the United States Attorneys

U.S. Department of Justice

Washington, DC


Peter M. Marone


Virginia Department of Forensic Science

Richmond, VA


John W. Hicks


Northeast Regional Forensic Institute

The University at Albany, State University of New York

Albany, NY


Peter Neufeld


The Innocence Project

New York, NY



 Represents the views of the DOJ on the NAS report.

 Overall it is a helpful addition to the forensic science community.

 It contains many of the same steps recommended in 1999 and 2004 by the DOJ.

 The DOJ agrees with virtually all of the NAS recommendations.

 DOJ Lab accreditation programs are in place,

 SWGs are establishing standards and protocols,

 A uniform code of ethics for accredited laboratories has been adopted,

 NIJ solicitations have been issued,

 and research on bias is being published even in the most recent JFS.

 The work is ongoing but more needs to be done.

 The report did not attempt to create a gap analysis or do a needs assessment with funding requirements. These are important and urgent questions.

 For the first time, a President’s proposed budget includes 35M for the Coverdell improvement grants.

 The federal government has an important role to play in support of our criminal justice stakeholders and constituents, and the DOJ has already focused on that effort.

 The DOJ is assisting ongoing efforts through numerous collaborative approaches and continues to work with the SWGs, and non-profit internationally-recognized accreditation bodies.

 NIST working groups and others are already working to address the issues in the report.

 However, there are 2 recommendations that the DOJ does not support:

 NIFS to oversee the nation’s entire forensic community and

 removal of all labs from the administrative control of law enforcement agencies or prosecutors.



 There are 4 primary forensic science community scientific and technical challenges that must be met at this time: 1) resources, research, standardization and education.

 An annual assessment or requirements analysis needs to be done to set forth a valid national strategy.

 There has been a lack of resources necessary to support strong state and local laboratory systems while caseloads increase exponentially.

 If we continue to focus solely on backlog reduction instead of technical advancement, backlogs will continue.

 Congress should establish funding for all disciplines, not just a few.

 There is no accurate number of forensic service providers including crime scene and identification units in police departments make funding requirements difficult to estimate.

 Estimate 11,000 forensic service providers (ID units) in addition to the 400 publically-funded laboratories across the country.

 Not validated does not mean not of value.

 Research is needed in many areas.

 Most publically funded crime labs are moving toward accreditation - higher than 82% now.

 Need to bring along the forensic service providers (ID units) toward the standard of accreditation.



 Share views above, and do not support that NIFS is necessary.

 However, 3 existing agencies bring elements that can help address many elements in the report: FBI, NIJ and NIST.

 Specifically, recommendations 1, 3, and 10 would be to encourage research to establish accuracy, reliability and validity in forensic science.

 The most efficient and effective way to address the issues in the report is to insure that there is a high degree of coordination between these agencies with input from the community.

 Community-adopted SWGs standards, which are cited in a lot of research, should continue to be followed.



 Provided details on the Barnes case - soil consistency, hair consistency microscopic matches, and unusual blue-jean stitching similar.

 Underlying disciplines had never been adequately validated.

 Doesn't mean that they can't be used - just brings the question what does it mean.

 The hypothesis is the type of thing that hasn't been adequately validated. That is why the NAS found what it did.

 In other types of disciplines we don't validate them after they are out... pharmaceuticals, health.

 We should have an entity that looks at forensics before they are used, not after.

 Many of these systemic problems have been known and only now do they want to do something since the NAS report.

 We don't have the users decide when a product is ready - we have independent people do that.

 If it isn't acceptable to have practitioners validate their own products in public health, then it shouldn't be adequate in criminal justice.



 The difference between a drug or pharmaceutical is that nobody is going into court with that information.

 It should have been the Judge's determination that a blue jean print was let into evidence.



 It's one thing for someone to say a jean print is consistent or matches, but if they don't know whether it's common or not, then that's the problem.

 There are psychological studies that "consistent with" means unique and individualized to jurors.

 The issue is that the degree of consistency needs to be validated prior to it being introduced in court.

 Daubert was administered rigorously in civil cases, but not so in criminal cases. There was no meaningful challenge or cross examination in criminal cases.

 The data speaks for itself - there hasn't been any kind of meaningful scrutiny. It needs to be fixed upstream to offer judges guidance.



 It is true we have made strides on the backlog, and now I hear we have other types of problems.

 Question: Are we reaching a place where through advances in technology or economies of size that it is getting easier to get data and information at reduced cost?



 A lot of the methods are lending themselves to automation, bringing efficiency of scale and accuracy. But the caveat is that when you start looking at smaller samples at greater sensitivity, you have to then look at mixed sample issues.



 Question: When did the Barnes case go to trial?



 4 years after the incident - 1989, before DNA testing.

 The problem is that DNA is unavailable as the truth test in many cases.



 If I'm the gatekeeper for dust and blue jeans - it doesn't tell me anything. I'm surprised anybody would let that in - too vague.

 They don't do an analysis and tell it's exactly the soil? It's hard to believe any kind of adequate gatekeeper would let any of that in.

 But I'm curious - I would like to get the panel's consensus - the study talks about pattern based evidence. Do any of you believe that fingerprints have inadequate validation?



 In all fairness, I don't believe the 4 of us are the best to answer that question. That's a scientific question. But if you want our opinions anyway,



 There is an enormous amount of data behind it - AFIS used nationally and internationally, and many are interconnected.

 What is lacking is putting that information into a form considered to be rigorous scientific studies.

 There maybe some information we could put in that format that may provide limits to fingerprinting, but we have to explore it to see.

 Historically friction ridge analysis has served as a valid tool.

 DNA has very specific framework whereas with fingerprinting what hasn’t occurred is that the details haven't been mapped for a statistically supportable conclusion - with X number of points, how strong is that - it's lacking.



 I don't know that it's lacking - I used to hear that testimony about that - We used to hear some say 7 points, we wouldn't allow less than 10 points and then we heard about the statistical analysis and what that did when you went from 7 to 10 points.



 With DNA, if you have 3, 4 or 5 you can't even search it. With fingerprinting it's not like it's a nice clean print - it's smudged, it's smeared, etc. All the other environmental aspects of it – that’s where the argument is.



 But if there were enough points you don't have a problem with that being scientifically validated?



 After all the studies are done, I have no doubt that the underlying science will be found to be valid. But the application of it by an individual may be found to be a different issue.



 I think the science is applicable and probative for court when it's properly applied by a qualified individual. The problem is you can't make a generalized statement.

 With a very clear print it's easy – probably nobody would object to that. But once you get to smaller, distorted partial latent print then it becomes more difficult.

 It doesn't mean it can’t be done, but that's where the research needs to be done.

 So even if courts allow them in to evidence, more research should be done on all those areas.

 Courts are allowing this types of pattern evidence into evidence every day.

 The admission of the evidence is so case specific - you have to make sure the expert is qualified, have confidence in his ability to do the examination through h direct and cross examination, and if you that believe based on what he did, whether he is from an accredited lab, certified, all the other holistic evidence, you have to make a judgment call whether that's probative for this case for the issue at hand.



 I think your last question was incredibly poignant. You said how many points does it have to be that they say a match.

 One of the problems is that one state it could be 5, one state it could be 7, in others it may be 9 or 11.

 You would not be satisfied if 4 different labs had a different way to determine whether you had a specific disease or whether or not you had reached a certain threshold that you needed a certain medication.

 You need a standardized way of interpreting data and we haven't done that [in forensic science].

 That's why people talk about having NIFS so there would be some group other than just the users to say they know it's got to be 9 or 7 so it becomes a national standard.



 Was the FBI - was that a 7 [point standard]?



 The FBI - they have no standards. [that was the actual transcript, but it was apparent from the tone and circumstance that he meant that the FBI had no point standard for latent print identification – it wasn’t said in a joking way and nobody laughed except me listening to it and you reading it!]

 Generally, there are no minimum points you have to have - it's on a case by case basis.

 The medical laboratories are dealing with pristine samples - not contaminated, not partial draws of blood or something,

 That’s a lot different than doing an analysis of a latent print and rolled print, you can't have necessarily specific rules that apply to every single type of analysis.



 Let me just follow up on this - If all you have for evidence is 5 points and you look at is as absolutely consistent and you do a visual overlay and it just overlaps exactly, does the jury not get to see that if the standard is nine - do you only get 7 and you have a standard of nine but 7 is all you've got - Would the jury not get to see that?



 That’s the problem with having a uniform standard that's not flexible to meet the particular case at hand.

 Those 5 points of comparison may be relatively unique and therefore could even be a better comparison than another comparison with nine points.

 So what you’re doing is setting an artificial standard for the community that deprives juries of probative evidence.



 Mr. Neufeld, why was Mr. Barnes tested when he was tested? What were the circumstances? I am assuming he was claiming innocence all along.



 He was. He wrote in the early 1990's and tried at the time, but the time of testing at the time needed a larger sample than other sensitive types of STR's that we were able to finally exonerate him with in 2008/2009.

 We did testing way back when and then just waited on the technology to catch up and that's how he got out.

 On this case we did not get a cold hit to determine who hew as. In many other cases we did - we worked with police and prosecutors to do identify the real perpetrator, and invariably, those people who were identified committed other seriously violent crimes in the intervening years.

 That's why these NAS reforms are not just about avoiding wrongful convictions it s about public safety - it's about trying to make sure the system is working as scientifically as possible so we can get the most powerful evidence to solve crime and identify perpetrators.



 But you indicated something about the purpose for which its used.

 You could have very good science, and there would be a difference between using it as screening and using it as evidence in a trial.

 DNA for example, You would have all kinds of chain of custody problems with samples out there you tried to use the sample in the database in court, but we don't do that - you use the sample in the database for screening - when you get a cold hit you go to that person and that sample is what you introduce in court so you don't have all those chain of custody problems.

 Is there good science that will help you solve a crime that may not be good enough for admissibility in court?



 That's a good question. I think the police are using good investigative tools to get leads where those tools may not be admissible in court.

 I don’t have a problem with the forensic science doing those sorts of analyses. The problem is that unless you are able to quantify those forms of evidence, what is the jury supposed to do?

 So regardless of the type of evidence, it is not enough to say “consistent with” or “matches” unless you can communicate what that means to a jury.

 That’s science. The scientific community must ensure that they haven’t only validated the analytic capacity of it, but also how it will be interpreted and explained.

 The Board of Forensic Odontology has 5 levels of testimony. The lowest is match.

 Yet when ASU did psychological studies on juries, 84% said match is exclusive of him to the whole planet.

 The NAS said we need the scientific basis to do that.

 And the best way to do that is to get data, find out how unique characteristics are, and then you can communicate that to the jury instead of “match”, “similar”, or “consistent with”.



 The study recommended NIFS and indicated that NIST had limited ties to the forensic community and would not be seen as a leader by scientists, scholars and practitioners.

 If NIFS isn’t supported, how do you respond to the report saying that NIST may not be seen as an adequate leader by scholars and scientists?



 NIST played and continue to play a very significant role in DNA development.

 NIST was involved in the optimization of the AFIS systems, the automated firearms systems, standards development for industry for clinical and other applications, and they produce the tractability standards that are used in any management system.

 It may be the forensic people don’t have a full appreciation for the role they played, but from my perspective they played a key role in those systems.



 I applaud the innocence effort, but it’s my understanding that since 2004, of the innocent people that you have helped to be released, have there only been 2 since that time who were convicted since 2004?



 Yes, but for example it took 15 years to get Mr. Barnes to get exonerated.

 You wouldn’t expect anyone since 2004 to yet make it into our cycle.

 Also, we have a backlog of over 2000 cases.



 Perhaps the courts are doing a better job now than they were 20 years ago?



 I don’t think that’s the answer because DNA is only available in a small percentage of crimes.

 The other disciplines may be utilized today, then there is the real likelihood and risk that other people may be wrongfully utilized.

 But there are others out there and we want to make them better.



 Have all of the CSI shows polluted our debate over this to a point that its’ almost irretrievable?

 Even language like “match’ or “hit” – aren’t we in this circumstance where we went for a long time and everyone now looks at these tools through their own ideological lens?

 Is the language we use to talk about it something that even a new agency would have a problem implementing?

 How do you solve the language problem?



 What the scientists say is that we should probably ultimately eliminate terms such as those, and instead have scientific testimony.

 So say they do the research and say something like 1 out of every 80 pairs of shoes is like this, and both had them. Do away with all those general comments.



 But with an unlimited number of combinations and permutations in certain kinds of evidence – so how do you conceivably do that?



 Perhaps Mr. Hicks could be better to answer this – the FBI laboratory maintains databases on lots of things like that – fibers, tires, etc. But you don’t have databases with wear of tires or shoe.

 So I’m simply saying that we have science based testimony for DNA, and it doesn’t necessarily have to be that definitive.

 For example, ABO or ABM blood types – one in 50 people. Compared to DNA maybe not, but it was very powerful then.

 I think it’s a lot to ask gatekeepers to know what’s out there.

 I think it would be better if we had a body that said “this is all you can say about this technology”.



 In the case of Mr. Barnes – is it reasonable to come up with standards to things like blue jean marks in dust in advance of a jury?



 I don’t think so. There are certain characteristics of randomness that may not allude themselves to those types of studies.

 The files [databases] that Mr. NEUFELD mentioned weren’t created for testimony, they were created to produce leads to investigators using class characteristics.

 The next step in that process is for the investigator to collect the shoes see if a direct comparison can find those wear characteristics.



 The report talked about variation in vocabulary. Are there trends that lead you to believe that if you are in a big city there is less chance? Or a regional area?

 Are there some systems that have gotten much better – trained their people better.

 Can we learn best practices from somewhere specifically? Or is it random?



 There are some labs that are better than others – when labs become accredited, we see a big improvement.

 Some labs are better funded or have better training programs than others, so we can point to labs as exceptional.

 It doesn’t mean that they can’t make a mistake, but we can point to exceptional labs. It usually comes back to money and training.



 Have the states come about on this issue to try to do this better?



 There are some states who have oversight commissions. For instance, the most DNA exonerations have been in Texas.

 There have been a lot of people that have been able to locate samples from old cases.

 What they did was set up a forensic science commission and they are taking a look at, for example, arson. They are trying to wrestle with intent.

 NY has a commission, and VA. But that isn’t enough.

 It would be better if there was a single entity nationwide that can look at this stuff.

 There is no reason that you should be able to get better service in one location than another.

 It should be the same as pharmaceuticals – the quality is the same across the country.



 If it’s not the Judge, who is it that has a standard to accredit disciplines?



 I think you have a number of issues there. If you are looking at methodology, we would look to the SWGs.

 There are other sciences that could use SWGs and other types of expertise could be used on the SWGs.

 There are accrediting bodies that accredited labs that use SWG standards.

 You have certifying bodies that set the credentials of the individuals.

 That isn’t to say that a federal entity couldn’t have a say in all those elements, but it would be to make sure all these efforts are dovetailed together.

 I see the oversight as being the facilitator of all these different functions.



 Coverdell [grants] has been very helpful.

 One of the elements for eligibility is that the lab be working towards accreditation.

 In NY it is has been helpful in labs updating systems and complying with standards.

 If I may go back to the SWG issue – as DNA was evolving, the SWG was established to help do that in a coordinated way.

 Following that, SWGs emerged in other disciplines as well. There were questions as backlogs, keeping up, and the federal government stepped in, that’s where we are with other disciplines now.

 The mechanisms are in placed – they just need funding and coordination to help address them.



 One of the most frequently mistaken types of testimony is eyewitness identifications. How would we let them come in?



 The way we have let them in over the last 25 years - we look at 5 factors of validity.

 However, there is a whole new body of social scientific data coupled with innocence project data that modify what the court should look at before it’s deemed reliable for a jury.

 One other thing – there is a difference between accrediting a lab and a method. The ASCLD-LAB accredits laboratories and we certify individuals.

 But before we get there you have to be sure that the technology they people are going to use are valid.

 People say we have SWGS to do that. They are mostly user groups, and we would never allow doctors to sit at the FDA to determine whether drugs can be used or not.

 That’s one of the reasons the NAC called for NIFS.



 We were talking about backlogs and money – how much money do we need?



 When we look at the complexities involved, there are some things you can and can not put numbers to. We can’t with numbers of people or equipment.

 The report said we need to look at a bigger employee pool – get them to school and interested.

 I went to grad school under LEAA – loans were forgiven and I was in a lab for 4 years. We need to do that again.

 We need accredited institutions in forensic science – a couple of hundred students.

 Give them loans for 4 years – 5 million dollars. Loans for undergraduate – 55 million dollars.

 That makes those people competitive with the kid that gets a free ride for chemistry at Duke.

 When we look at accreditation, it roughly is 10K per site visit, with 11,000 entities, 110 million dollars.

 What does it cost to Training the people to become accredited? It’s 5K per person. If there is one tin each institution – it’s 11,000 times 5K.

 Those are the ones we could put dollars on to begin with.

 But we don’t’ even know if 11K is a good number - we don’t know how many ID units are out there.

 In VA we did a study, but we need to do that nationwide, and what kind of facility they are in, etc.

 We need a requirements document like the military would do. And the requirements are going to be staggering.



 I think there needs to be a study if we could spend our money more wisely than creating a new bureaucracy. We could wait to have a new entity - things are more urgent than that.

 Taking labs out of law enforcement needs review also. With 11K id units – to get them into their own separate laboratory would be immensely costly and you would get a lot of push back from the Chiefs and the police officers etc.

 \The good thing is that when you are accredited, there are standards in there that require autonomy from the parent agency so you can have independence of funding.

 So there is something in place that meets the goals of the NAS report without stripping out ID units from law enforcement with immense cost and disruption.



 We have established the judge as the gatekeeper but they may need greater training.



 There may need to be some peer review to ascertain if this is junk or regular science, and then what happens when you find out it doesn’t work.

 60 minutes did a report on ballistics suggesting that it wasn’t up to par.

 Mr Hicks, can you comment on this?



 I’m not sure what you are referring to – if it's compositional analysis on bullet lead - is that what we are talking about?

 Of course, I’m not really prepared to comment on that, but essentially, for some period of time the FBI would look for signature elements in lead and if they found consistency, then they would draw the inference that they could have come from the same batch, and after the report they made the decision to discontinue the work.


 What they found were that the conclusions they drew from the analysis were not valid – not that the science wasn’t valid.

 So what we need to do is make the terminology understandable to the lay person.



 Just to clarify that - It is part of the science to communicate what you do. You need to communicate the value of the experiment or the analysis.

 About the FBI matter, they continued testifying over 25 years that they could say that a bullet came from a box of cartridges.

 They never looked at the ability to make that claim and testify to that. After the NAS said there isn’t enough science there, and then the FBI started writing letters saying that their testimony conclusion was not sufficiently based in science.

 So it is about science when you give estimates. You need independent agencies to do this, like this example.



 The study recommends strings attached with funding to achieve best practices and standards.

 We are the federal government, and most of these crimes are state crimes.

 Although some would like to say we are taking charge of everything, it is a matter of state and some provide better justice than others – I would hope we could bring some along effectively.

 I applaud those that do hold theirs to the better standards.



 Thank you witnesses for your testimony – we have additional written questions and the record will be open for one week for reception of these materials.

 Subcommittee stands adjourned.


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