Daubert Hearing on Simultaneous Impressions

[Mark]

Does anyone know if this type of hearing will be open to the public in the Commonwealth of Massachusettes Supreme Judicial Court?

http://www.boston.com/news/local/massac ... ce?mode=PF

Thanks,
Mark Mills

[L.J. Steele]

[quote="Mark"]Does anyone know if this type of hearing will be open to the public in the Commonwealth of Massachusettes Supreme Judicial Court?

http://www.boston.com/news/local/massac ... ce?mode=PF

There's nothing about this case that would make it a closed hearing (doesn't involve a minor defendant, FREX). You should be able to attend. Email me if you need directions.

You should also be able to watch it by webcast.
http://www.suffolk.edu/sjc/
has the link. The hearings on all the morning cases start at 9 a.m.. Patterson is 5th on the list, so likely won't be argued until 10 or 11, but the court can change the order at any time. I used the webcast once and found that one has to watch the whole thing, one can't skip ahead to the part one wants to see.

[Mark]

Thank your for the info. I may try the webcast.

Mark Mills

[g.]

Hi Lisa,

I see that you were involved in the Amicus brief filing. I am a little confused on an issue. Can you explain, in general terms, a few issues I am having trouble understanding.

I see that a new case has been granted for defendant b/c of previous legal counsel. Ok, that makes sense.

I am now trying to figure out WHY the Daubert issue/admittance of evidence is before the Supreme Court in Mass.

It was my understanding through the Daubert trilogy (Daubert, Kumho, and Joiner v. GE) that Joiner says that appellate courts may not review a lower court's Daubert/gatekeeping decision, with the exception of "abuse of discretion". So why is this issue before the SCJ?

Is it b/c Joiner is a federal case and this is State, though the state has adopted a Daubert standard? I was under the impression that whatever admissibility the lower court rules, it stands, and that's that.

Help me out here, what pieces of the puzzle am I missing? What is the actual decision that is being put forward before the court tomorrow.

Thanks in advance,

g.

[L.J.S.]

Can you explain, in general terms, a few issues I am having trouble understanding.

I can try. I was not counsel for the client, so I am working from the transcript of the hearing and evidence presented to it.

It was my understanding through the Daubert trilogy (Daubert, Kumho, and Joiner v. GE) that Joiner says that appellate courts may not review a lower court's Daubert/gatekeeping decision, with the exception of "abuse of discretion". So why is this issue before the SJC?

This case has an unusual procedural history because it is an interlocutory (during the trial) appeal. Normally, an appeal would happen after the trial and conviction (no point if the defendant is acquitted). Here, the defense challenged the print evidence. After a hearing, the trial court made a ruling in favor of admitting the evidence. The defense sought and got permission to take this appeal before the trial proceeds further. So...we don't have trial testimony, just what was said at the hearing, to work with in the appeal.

As to your specific question, Daubert, Kumho, and Joiner are all federal cases dealing with the federal rules of evidence. Mass. uses a Daubert-like analysis thru its own case of Commonwealth v. Lanigan. As one of the Justices noted at oral argument, the narrow issue before the SJC is whether the trial judge abused her discretion in admitting the evidence. The Court could narrowly find no abuse of discretion and affirm her reasoning. It could find no abuse, but note that it disagrees with her reasoning, thus guiding judges in future cases. It could reverse. Or it could remand for a new hearing if it is unsatisfied that the evidence presented was adquate, but thinks the parties should get a chance to fill in the gaps in the record.[/i]

[L.J.S.]

I was there for the oral argument (don't know if you saw the audience in the webcast, but first row back/center, scribbling notes furiously). Some thoughts, for what they are worth.

The views below are mine -- not those of the amici, nor should they be attributed to the NACDL Forensic Evidence Committee.

The Supreme Judicial Court is constrained by the record given to the trial judge and such other documents as the parties may agree to. One of the problems in this case, is that the trial judge was not told about any examiners other than Officer Folib and Trooper Martin. Patterson's attorney made one(?) of the FBI reports part of its record. (I haven't read the Norfolk DA's amicus, but other four Mass State Police examiners weren't mentioned in the Suffolk DA's brief, nor was the Ron Smith and Associates report. While important, these may not be facts properly before the SJC because the Suffolk DA responsible for the case didn't include them in their brief.) At the beginning of the case, there was a dispute about what the FBI report said -- the parties were supposed to reach a stipulation within 2 weeks. That will be the record before the SJC.

My understanding of the FBI report I have, is that the FBI said the four simultaneous latents were of "no value" and a print from the other side of the vehicle was not Patterson's. It appears that the FBI is disagreeing with Folib, Martin, etc. The FBI report happened after the hearing, neither party chose ask the trial judge for reconsideration based on it, so the record is not as clear as I'd like. I haven't seen the Ron Smith report or a 2nd FBI report of the same date. Again, the stipulation should clarify this confusion.

Let me take some issue with the description of the NACDL brief.

The thrust of the discussion of 18 known and described mis-IDs or places where experts differ is that the error rate is unknown. If you look at how these 18 cases came to light, it seems evident there are almost certainly more cases out there that didn't have the fortuity of exculpatory DNA, the Spanish police, etc. How many more, no one can say -- the known cases could represent half of the potential cases, a tenth, a hundreth, or a thousandth. But there are more out there.

We do talk about the old 16 point rule in the UK, in context of explaining the UK's old test for simultaneous prints (10 points per simultaneous latent or 16 points on one latent) in the context of whether Folib's finding of a total of 13 points on 3 fingers was sufficient. The amici also talk about Ashbaugh's discussion of "cluster prints" in his treatise. Both discussions are in the context of the Commonwealth's expert (Mr. Meagher of the FBI) asserting that he was unaware of any standards for simultaneous determinations.

Fingerprinting as synomyn for reliability is a common belief and discussed in the context of terms like ballistics fingerprinting, DNA fingerprinting, etc. The public tends, at least pre-Mayfield, to regard fingerprints as the most reliable of forensic sciences. I'm not sure why Mr. Ostrowski finds this objectionable or untrue.

I don't think the problem of confirmation bias can be avoided so long as the examiner is not insulated from biasing information about the rest of the case and the suspect. And the Stacey report itself notes problems with non-blind verification in Mayfield. These are issues that need to be dealt with, not ignored.

The brief specifically notes that the two confirmation bias studies discussed deal with college students, and warns the Court about the limited inferences that can be drawn between students and professional examiners. I am told that there is a study in progress on confirmation bais and trained, experienced examiners. Results should be out in October.

Ashbaugh is the one to discuss what should be found and documented to establish that a print is simultaneous -- that part of the brief is taken from his text, the pages of which were appended to it so the Court could read if for itself.

At the hearing, the Commonwealth chose not to discuss Martin and Folib's training, methods, or the basis for Martin's conclusions. Folib's testimony from the 1st trial was an exhibit -- which gives his credentials and how he explained why he concluded it was simultaneous.

Based on the Plaza ruling, the question of the examiner's qualifications needs to be addresed before testimony and IMHO should have been addressed by the Comm. It is critical to note that the hearing in this case was after the Cowans mistake was known, but just before the Mayfield mistake was discovered, so the parties and the trial court did not get into the issues of confirmation bias, tunnel vision, high-profile cases, etc. that came out of the Stacey report. Certainly, the Commonwealth could have asked to reopen the hearing to explain why the Mayfield error and the Stacey report did not affect its case -- it chose not to do that and has to deal with the problem in the appeal.

I have the secretary of Public Safety's brief -- it is 10 pages long and not all that helpful, IMHO. I'll send Kasey W contact info for the author, who would likely be glad to send it to CLPEX.

Cunha didn't amend the case to deal with the science as a whole. That's the thrust of his original motion, and the trial court hearing. The parties have consistently dealt with simultanous impressions as the tail of the dog, not as the whole hound. I have to disagree with the idea that the Commonwealth was ambushed with a discussion of fingerprint reliability as a whole. The Court is going to have to consider both.

Mr. Ostrowski notes "I felt it was unfair to pose such abstruse, technical questions on the intricacies of latent fingerprint identification to a lawyer not trained as an expert in the field." In theory, the answers to all of those questions should be in the trial court record, appellate record, and maybe the amicus briefs. As appellate attorneys, our job is to point the Court to the parts of the record that answer its questions -- if the answers aren't there, then either somebody has failed his/her/its burden of proof at the hearing, or on the appeal; or the answer may be something the Court will allow a supplemental brief or stipulation.

Sadly, and humbly, it is appellate counsel's job to master enough of the technical data to point the Court to the answer, or to anticipate the questoin, find the answer, and put it in the briefs so the Court has it in writing. If one is having to answer questions outside the briefs and record at oral argument, something likely has gone wrong.

Having done a number of appeals, I'm not going to make predictions about the results. I'd suspect more like 6 to 8 months given the complexity of the case and the likelihood of at least one seperate disssenting or concurring opinion.

I've had cases where the oral argument went quite well for my side, and the opinion sided wholly with my opponent, and some where the oral argument for my side felt like a disaster, but I won some key points in the opinion. The questions showed the Justices had given this matter a great deal of thought and will likely be very, very busy with this over the coming months.

I would be interested in the thoughts of those who watched it about the Court's questions about points and ACE-V levels and whether there ought to be some minimum point level set for Mass.

[L.J.Steele]

I just got the Norfolk DA's brief by mail. Kasey's copy doesn't have the various attached documents including examiners' reports. I don't know if the SJC will consider the unpublished reports that are specific to this case to be within its appellate record or not. This should have been in the Suffolk DA's brief as the party representing the Commonwealth, not appearing for the 1st time in an amicus brief. (I only have limited record, so if this was in the parties record and we weren't sent it, disregard that comment.)

I also find it odd that the Norfolk DA is relying on a 1997 transcript from another witness where an examiner is trying to testify that a print is "fresh" because the ridges are thick (the transcript is cut off at that point) -- Norfolk Appendix at 47. I had thought it was textbook fingerprint theory that you can't reliably age a print and shouldn't be using words like "fresh".

The odd thing is that the Norfolk DA, Secretary of Public Safety, and the Suffolk DA (representing the prosecution) all essentially want to rest on the 100 year acceptance of prints in Courts. Nobody wants to talk about Mayfield, the Stacey report, or whether Cowans and Mayfield changed something about how that 100 year history and prior record of Daubert victories should be considered.

[steve ostrowski]

Lisa,

Thank you for clarifying some of the complexities associated with Supreme Judicial Court proceedings and the appellate process.

Concerning the 18 or so erroneous identifications, I also believe one must take that number with a grain of salt….but for different reasons. I do not believe that cases of fingerprint fabrication, forgery or instances where supervisors mandate that an identification is made should be counted as errors against the science. These acts are criminal and should be treated as so. There is no way to establish what the circumstances were in many of these 18 cases. Additionally, you state that “there are more out there,” referring to cases of undiscovered erroneous identifications. Although I do not doubt it (because of the human element), insinuation of any type of numbers would be an unsupported interpolation and pure speculation. The only way to prove that there are more out there is to find more out there.

When an examiner (e.g. Foilb) discusses a point of similarity, there is a great difference of understanding between a trained expert and a lay person. A point, Galton detail or “match” as the SJC was referring to it, is not simply a spot in space that counts as “one” unit of measurement. These details (also known as Level II detail) have much more information than the one-dimensional aspect assigned them by novice observers. A bifurcation for example has a certain acute angle of divergence, the very tip of an ending ridge has a specific shape and directionality, surrounding ridges have a great assortment of arrangements that define and encompass each “point.” This is now getting into Level III detail. Ending ridges are not all the same. Bifurcations are not all the same. You cannot simply count to 8 or 13 or whatever and get a number that tells you if there is an identification or not. Each Galton detail has intrinsic value that cannot be quantified.

The UK’s minimum point requirement was a legal requirement as opposed to a scientific requirement. An examiner could testify in court to an identification only if the print contained the court-required minimum number of points. Examiners were able to make identifications with less than 16 points but investigators could not use it at trial. What a prime example of law governing science. Reminds me of Galileo’s struggles. This however is moot, as this rule is not longer in effect. Quite often, laboratory administrative rules, foreign legal constraints and quality assurance measures are misinterpreted as limitations of the science when in fact they are not.

I am in agreement that confirmation bias should not be ignored. What should be ignored is the information surrounding the case. Confirmation bias is within a person, not the method. An examiner who seeks out information or puts any weight on the ‘facts’ of the case are setting themselves up for a great fall…and unfortunately, as illustrated by cases during the past couple of years, the entire field also. I believe that acknowledging the potential of confirmation bias and taking the proper steps to prevent it allows for a proper, professional exam. I assimilate this to the professional training of an attorney taught to provide the best possible legal representation for their client without becoming emotionally involved in the case. Additionally, I do not believe that this necessitates a separate entry into an examiner’s notes, as it is part of a thorough methodology. I would be the government’s responsibility to extract that information at a hearing or trial.

Fingerprint comparison being synonymous with reliability insinuates the dogmatic stance that many critics of the science of fingerprints state still exists today. As a science, we the practicing examiners know the science is reliable. We know that one of our main purposes is to serve the courts, but it is really unfortunate that the sound science of fingerprints may be reduced to legal insignificance at the hand of a few skeptics playing devil’s advocate. Why is it that fingerprints are acceptable when it helps the defense’s case and is unreliable when it hurts their case?

Nothing would please me more than to have everyone finally understand the science.

[L.J.S.]

For some reason this thing properly logs me in sometimes, and other times, not...<sigh>

Concerning the 18 or so erroneous identifications, I also believe one must take that number with a grain of salt….but for different reasons.

Agreed. I have heard from several examiners who's judgment I trust that Cowans is a case of perjury, not a mis-ID, but when the grand jury failed to indicit the two examiners, the "official" record was left with the explanation of incompetence, not perjury. I had hoped the Nofolk brief would talk about Mayfield, Cowans, and the other cases, but the authors chose not to in the time they had available.

Might be worth someone doing an article on these for JFI or JFS to discuss what went wrong from the examiners' PoV.

Additionally, you state that “there are more out there,” referring to cases of undiscovered erroneous identifications. Although I do not doubt it (because of the human element), insinuation of any type of numbers would be an unsupported interpolation and pure speculation. The only way to prove that there are more out there is to find more out there.

Agreed that the number is speculative -- there are almost certainly more. How many more? No way to know.

When an examiner (e.g. Foilb) discusses a point of similarity, there is a great difference of understanding between a trained expert and a lay person. A point, Galton detail or “match” as the SJC was referring to it, is not simply a spot in space that counts as “one” unit of measurement.

Understood. Tho it would be darned useful if the examiners could make a habit of articulating this sort of thing in their testimony. I suspect some make more use of the Level III data available than others.

I am in agreement that confirmation bias should not be ignored. * * * I believe that acknowledging the potential of confirmation bias and taking the proper steps to prevent it allows for a proper, professional exam.

One ought to talk to the psychologists about this. My understanding is that confirmation bias and suggestion work on a deeply subconscious level when affecting judgement. It isn't something one can ignore with proper training -- that's why medicine, for example, uses double-blind trials. It isn't that doctors aren't don't know about account for confirmation bias, it is that they don't think they could reliably correct for it.

I assimilate this to the professional training of an attorney taught to provide the best possible legal representation for their client without becoming emotionally involved in the case.

Not entirely the same thing. I know that confirmation bias, and a couple of other heuristics affect my judgment when I review a case. I'm more likely to note and later recall facts that help my client than those which hurt him, and I try to take that into account. As an advocate, a certain amount of pre-client bias is part of my job so it is a less significant problem than for a judge, jury, or an objective expert.

As a science, we the practicing examiners know the science is reliable. * * * Why is it that fingerprints are acceptable when it helps the defense’s case and is unreliable when it hurts their case?

As defense counsel, I try to be as skeptical about the weaknesses of my experts as of the weaknesses of the state's experts. I try to be consistent in how I use expert testimony. If, for example, I had a phrenologist's favorable testimony, I'd mention it in the brief, but put no weight on it as I don't think phrenology is a "science". It would be the State's role to point out that phrenology is junk. If I had favorable print evidence, I'd certainly mention it and would be expecting the State to counter, likely citing my own materials against me.