Where are our priorities?

[L.J.Steele]

But those that have differing opinions or their conclusions reveal an alternate finding are held to the same scientific standard and they will typically publish the data and conclusions that refute the original conclusions. So, my question is, does the defense ever bear the burden of realiable proving why the testimony shouldn't be allowed? Was there a defense expert in this case that concluded that it was not an identification?

Yes and no. As I said upthread, the proponent of the evidence has the burden of showing it is admissible. For a fingerprint match, the prosecutor have to show that the witness is qualified to give an opinion, the method used to reach the opinion is sound, and the results are reliable. Ultimately, the prosecutor has the burden of proving guilt beyond a reasonable doubt.

When the defense offers a witness to contradict the state's expert, they go thru the same procedure -- witness must be qualified as an expert, etc. Assuming the witness is a print examiner who, using ACE-V, has reached a different conclusion about the match, the parties would likely agree about method, and likely about qualifications, and just be fighting about the result's reliability.

On the other hand, one can get into anDaubert fight just about the method. In the Mass. Patterson case the fight was about applying ACE-V to simultaneous impressions. The underlying prints were not even an exhibit at trial or part of the appellate case. Both parties had to qualify their live witnesses as experts. The transcripts of testimony from four other expert witnesses from the Mitchell cas was admitted by agreement.

In the appeal, the amici (friends of the Court) all cited to published materials in various law reviews and journals to support their positions -- the Court had to decide if it deemed those materials reliable.

So yes, when the defense puts on witnesses it does have to go thru the same procedure of showing the witness is reliable. But no, the burden is ultimately on the prosecutor and one can attack the method used by the examiner without putting in an expert who disagrees.

Note that in several of the 20ish cases cited by Cole as mis-IDs (and I don't think there's serious disagreement that all of them are mistakes, tho there's some disagreement about why the mistakes were made), there were defense experts at trial in several who didn't catch the error. There was a court-appointed expert in Mayfield who didn't catch the FBI's mistake. There were, some reports note, two defense experts in Cowans who also missed that error. This leads me to be very concerned about whether defense experts are an adequate safeguard against mis-IDs.

[L.J.Steele]

(as well as yours--a good piece of work).

Thank you. (If you are talking about the article on Trying Print Cases from Crim. Law Bulltn, do you have the 2005 update from Vt. IAI or just the older print version?)

You say “…your eyes and memory can, in effect, lie to you. They can fail to present you with objective reality.” The word “can” imparts to me the meaning that yes it might, but then again it might not. What I want to know is how often it can fail and under what situations can it fail. Surely it cannot fail all the time or we would not be able to function.

Darned if I know the answer to that one. It could be that the eye/mind lie to us all the time in smallways, but that for the most part it isn't significant. (How often do you drive the same route, only to suddenly one day notice a change and wonder "how long has that been there?") In effect, your eyes/mind haven't been telling you about the change for some time, but it wasn't significant.

I agree that if the problem exists then it would be with problem prints. Surely we could find a different solution to problem prints other than ‘Blind Verification’ as the only means to overcome it.

It seems to me that if there's a potential suggestion problem -- the examiner has info leading him/her to expect a certain outcome, then the best solution is to have the evidence verified by someone who doesn't have that potential problem. The first line of defense would be to try to limit the potential suggestive info that the examiner is exposed to. The second line would be for the examiner, knowing he or she has been exposed to such information to be extra careful if the print is difficult. And the third line would be a verification that isn't subject to the same suggestion problem.

I wish I could present a valid argument but my training, knowledge, and experience in the Cognitive Sciences is limited to about the size of a pin head.

Similar here -- I just read the stuff. (Probably too much of it for my own good!) My undergraduate major was, effectively, economics and political science.

Their theories hold that some so called ‘biases’ may in fact be ‘approximation shortcuts’, that aid humans in making predictions when information is in short supply[/b].”

I've seen similar comments in some of the psych. articles and texts. This would factor into why Dror was able to use biasing information to affect results in marginal situations, but not when the match or non-match is clear-cut.

I do not deny it exists. I have a belief fault in how much, and exactly when and is Blind Verification the best solution.

And a healthy skepticism is a good thing! I just wanted to make sure we were on the same page about the underlying science before getting into the application of same. Sounds like we agree more than we disagree, and we both agree that more work in the area would be helpful.[/quote]

[Carl Speckels]

The question, "does the defense ever bear the burden of realiable proving why the testimony shouldn't be allowed' was more or less rhetorical. The point that I was clumsily trying to make is that an expert can be called to the stand, sworn in and provide testimony as to their findings only to have it excluded based upon a note-taking issue.

If the basic objective of our justice system is to arrive at the truth in a fair and systematic way then this court decision seems more than just a little frustrating. The prosecution appears to have fulfilled their burden by producing a qualified expert from a recognized (possibly accredited?) laboratory who, through fingerprints, was able to associate the latent to the subject. The strength of this apparent fact should be able to withstand 'incomplete documentation' in court. As for the 'verification' component of the decision, I've already opined on that in my last post.

If fingerprint testimony has become so fragile that the lack of crossing a 't' or dotting an 'i' can compromise the overlying fact that the defendant's fingerprint was found in a place that it shouldn't have been then I fear for all victims of crimes where latent print evidence is the sole source of physical evidence.

[steve ostrowski]

Hello all,

Great discussion here folks... not unlike the ones we have been immursed in ever since the Langill decision here in NH. We are purposely refraining from commenting on this thread, however...

Just wanted to set a few facts straight:

-The New Hampshire State Police Forensic Lab is an ASCLD-LAB accredited since 2004.

-The NHSPFL SOPs are modeled after the ASCLD-LAB requirements and actually exceed those standards in many areas. Additionally, there are many aspects that are cut-and-paste, verbatim verbiage from SWGFAST documents including the Quality Assurance Guidelines for Latent Print Examiners.

-During the ASCLD-LAB inspection there were no reported "findings" brought forward by the inspection team concerning the Identification Unit after reviews of our SOPs and random casework files from all examiners in the section.

-All eligible latent print examiners are IAI CLPEs, including the case examiner and the verifying examiner in the Langill case.

Thanks for your support.

~Steve

[Pat A. Wertheim]

As we all know, the majority of judges strive to remain unbiased themselves, but there are "friendly" judges and "unfriendly" judges. There are a few judges who give the benefit of the doubt in objections to the prosecution, and another few who give that benefit to the defense. We should avoid taking drastic "corrective" action -- or even thinking about it -- until a final conclusion is reached in this case. And even then, no drastic action should be taken on our part unless this case starts a trend. It is important to remember that the defense attorney's job is to object to our findings in any way he or she can. The New Hampshire State Police Laboratory was NOT deficient in the way it handled the case. The defense simply presented a new argument and the judge, in effect, said, "Okay, let's look into this a little more." Let's do that before we jump.

[Carl Speckels]

I know you're right Pat. I'm just a little frustrated for this examiner, especially when considering the basis for the exclusion.

[L.J.Steele]

I know you're right Pat. I'm just a little frustrated for this examiner, especially when considering the basis for the exclusion.

The judge expressly left the door open for the testimony to come in if and when the documentation is provided. We'll see if the agency can meet that requirement. Depending on how the case procedes, it may result in an appeal, which will give NH's appellate courts a chance to resolve the question for that state.

If the basic objective of our justice system is to arrive at the truth in a fair and systematic way then this court decision seems more than just a little frustrating.

There are many, many differing views about the goal of the criminal justice system. It is intentionally biased towards protecting the innocent at the risk of some guilty people getting acquittals. That's one of the reasons the burden of proof on the proscutor is so high. There are many areas of the law where failing to follow procedure can result in evidence being suppressed -- for the want of a dotted "i" or crossed "t" (as it were) a search warrant can be found invalid and the evidence suppressed, a confession can be held invalid if the Miranda warnings weren't properly given and waived, a charge can be dismissed because the prosecutor failed to put on proof on a minor, but essential, element of the crime. Getting the details right is critically important and courts are quite aware of both the costs of those requirements in lost prosecutions, and the risk when they don't require precision of the slippery slope and result-oriented decisions that can erode procedural and constitutional rights.

From the judge's point of view, the documenation was necessary to show that the examiner properly applied the method to the evidence. In that judge's opinion, that made the evidence unreliable, but the judge left the door open for the agency to cure the problem. Another judge might say that the documentation issue goes to the weight of the evidence, not the admissibilty, and let it come before the jury. And the jury could well be persuaded by an at-trial challenge and find reasonable doubt in that missing "i" or "t". Getting the evidence in is only part of the battle; leaving that weakness exposed is still risky for the prosecution.

I suspect the documentation issue is here to stay and will have to be worked out thru the trial and appellate courts over the next few years.

[Strict Scrutiny]

If the basic objective of our justice system is to arrive at the truth in a fair and systematic way then this court decision seems more than just a little frustrating.... If fingerprint testimony has become so fragile that the lack of crossing a 't' or dotting an 'i' can compromise the overlying fact that the defendant's fingerprint was found in a place that it shouldn't have been then I fear for all victims of crimes where latent print evidence is the sole source of physical evidence.

I think the goal of the forensic examiners should be not to fear for the victims of crimes. If we stand back and be honest I think you will agree that often the prosecution whines about having their hands tied, but protection of our civil liberties demands that excellent procedures be followed.

The following link should serve as a reminder that people get railroaded:

http://www.msnbc.msn.com/id/16710829/

I could paste a thousand of these examples in here, and there would be commonalities. One commonality is that the person was accused, believed they were innocent, fought for their rights, only to be crushed by a system that turned a blind eye to following the best procedures.

I think it is human nature to pull out all the stops when prosecuting someone we "think" is guilty. Judges should always remain highly skeptical and demand forensic science is free of bias and transparent. If not it should be excluded until it meets the muster.