Latent Print reporting and Inconclusive Determinations

[Michele]

Our office has looked into a lot of the accreditation issues and it seems to me that most of the limiting factors are caused by the agencies sop’s, not by any accreditation requirements. I don’t have any information with me to verify my opinion but I was under the impression that ASCLD/Lab’s main requirement is that you have standards and you go by them?

Can’t your sop’s state that you can conclude either “no value for comparison” or “no value for individualization”? If these are stated as viable options in your sop’s then you would have the option to use them? If this is true then the catch 22 would happen when an agencies sop’s just state “no value”. Then the conclusion is too vague to be of value to anyone.

If you are not currently following SWGFAST guidelines or have been forced under accreditation standardization, I'm afraid your time will come very quickly.

I've heard this statement a lot. I would hope it"s more important to do what"s right than to follow some arbitrary policies

[Steve Everist]

If you are not currently following SWGFAST guidelines or have been forced under accreditation standardization, I'm afraid your time will come very quickly.

I've heard this statement a lot. I would hope it"s more important to do what"s right than to follow some arbitrary policies

I think this is a good point. You could use NH as a case in point where the examination was done by an accredited lab and a certified examiner. Taken from the 4/16 Detail:

Also, Coffey seemingly ruled without regard of certain facts such as: the NHSPFL is an ASCLD-LAB accredited laboratory, our SOP’s are based on ASCLD and SWGFAST guidelines, our SOP’s were reviewed and approved by the ASCLD inspection team, the case examiner and the verifying examiner are both IAI CLPEs, and the lab’s QA/QC Manager conducted an audit of the Langill case file and found that all procedures were adhered to.

Yet it ended up being the judge; not SWGFAST, not ASCLD/LAB, and not their own department QA/QC Manager who made the determination that the notes that they kept didn't meet their own standards.

Not that a department shouldn't look towards certification, accreditation, etc... but there are no guarantees that their time won't come.

[mdavis]

I've heard this statement a lot. I would hope it"s more important to do what"s right than to follow some arbitrary policies

OK, what's right? Is SWGFAST arbitrary? If the court determines that SWGFAST-based ASCLD/lab record keeping is inadequate to support presentation of findings, what do we use as a benchmark? We are suddenly in a maze out here as the defense attorneys high-five in the library.

[Michele]

I don’t believe that being certified means your conclusion is accurate and being accredited doesn’t mean you have policies and procedures in place that insures the method you’re using produces reliable conclusions.

I really believe that if an examiner can justify why they used the procedures they used (reasons that have a logical basis) then judges will allow the evidence. I may be wrong, in fact I’ve been told that I’m “a silly, silly girl”, but so far this has always worked in the cases I’ve seen.

In January of this year there was a ‘Detail’ written by Mike Heintzman from Oregon. They had just gone through a Daubert hearing and Mike gave advice on the main elements that came up in their hearing.

If I remember correctly (and this could be from a different source than the Detail), they didn’t say they used ACE-V only because it was an industry standard, they explained that they used it because it was a scientific method that produced reliable conclusions (and they explained why it was considered a scientific method). They didn’t say that they used blind verification because it was an office or industry procedure, they mentioned it was a way to diminish bias and I believe they also mentioned other standards and controls they had in place (that had a scientific basis) that helped diminish bias and arrive at better conclusions. They didn’t only mention the value of reproducing a conclusion but they talked about the value of complete peer review and the multiple peer review processes their cases go through.

If the courts determine that certain record keeping techniques are inadequate then I see two solutions. We need to explain to the courts why they are adequate and if we can’t do that then maybe we need to improve our techniques (or improve our ability to explain what we do).

Telling the courts that we do limited documentation because it’s time consuming isn’t good justification. Telling the courts that we don’t want documentation because it might bias us doesn’t sound reasonable to me either. So far the only courts that I know of that have required contemporaneous documentation have only required it if it was in that agencies SOP’s.

SWGFAST does support documentation and supports a technical review (that checks that the appropriate amount of documentation is present). It may seem like the SWGFAST recommendations are vague but they should be used as minimum requirements and not the maximum that we’re trying to strive for. I know of many agencies that are being proactive in changing their documentation requirements. They’re contacting other agencies and working together to implement new procedures. Some agencies are also working with other forensic disciplines within their own agencies to see what type of documentation they’re using. The changes they're making might not be perfect but they’re better than nothing. Sometimes trying something new is the only way to see if it works.

[Tash]

Although this thread had diverted from this topic, I have a bit of a problem with trying to report out “consistent with…”. I think that you have to consider what this would mean.

Peter Griffin:
"I think the term “is consistent with” would be a more accurate description (which should be our objective) for ‘inconclusive’ prints that fall into the 4 or 5 point category".

If, as Peter states, you have 4 or 5 points that match but it isn’t quite the 100% certainty and you report this would this open up the question of how many points do you need to have 100% certainty? This in essence would be jumping back into point counting.

Mdavis:
it should be admissible to report commonality between a latent print and a control even if the level of certainty is less than 100% provided the appropriate disclaimer is made in the report

If, as Mdavis states, you have an impression that has certainty less than 100% do you report out to what degree of certainty you have reached and how do you determine this? I like the idea of having solid scientific findings. I don’t think that we have enough science to back a claim of “consistent with”, yet. If we had solid scientific statistics to support a claim of “consistent with” then I could be persuaded that this would be useful information to report. But if you report that “a latent impression is a left slant loop which is consistent with Joe Bobby” and leave it as this it diminishes the value of fingerprint evidence. Uniqueness is then questioned. The science of friction ridge is that ridges are unique and permanent. So what science are you using to report consistency? The analysis is simply inconclusive to make an individualization.

[Peter Griffin]

Tash,
True, the ‘science’ of friction ridge skin is that it is unique and permanent, but the science stops there when someone is asked to make an individualization of a latent print. At that point the process has become subjective and lay in the hands of the examiner’s experience and training…whether labeling it an ID, consistent with, inconclusive, or exclusion.
I really don’t see reporting a print as being consistent any different then reporting it as an ID in respect to requiring a certain number of points. The same rules apply: Experience and Training will determine it and not a set number of points. I am sure we have all had the cases where we were 99% sure the latent and known were a match, but something was just holding us back from being 100%…and we were forced to label it as inconclusive. “Consistent with”, in my opinion, is a compromise between ID and inconclusive.
And Tash, while I agree with you in wanting a more scientific approach such as statistics, I don’t see the point in ignoring the issues until that time arrives.
PG
P.S. If you are worried about point counting with ‘Consistent With’ wait until we get a comprehensive set of statistics….EVERYTHING will then be challenged with how many points you have.

[mary ellen holmberg]

Michele, I wonder how you can say (as you did in a previous post on Sat.) that a print could be of "no value" on an auto theft; but if it changed to a homicide, then you would look at it again--and could change your conclusion?

[Michele]

Mary Ellen,

I believe that what I do is an applied science (not a pure science, not an exact science, not a research science). This means that there are aspects of what I do that have to do with practical aspects (time and resources). Everything has value but are we willing to take the time to find that value or recognize that value? I don’t believe that because there are practical aspects to how I work that it makes what I do any less scientific.

But…..because there are practical aspects to my searches, that doesn’t mean that the quality control measures change when I arrive at a conclusion. Practical concerns may come into play when I’m deciding what to work and how much I work on it but they don’t play a part in the thoroughness of my conclusion. Every conclusion I arrive at (an ID of a victim, an ID of a suspect, and even exclusions) hold the same weight and deserve the same scrutiny as any other scientific conclusion.

If we look at other applied sciences (structural architects, electrical engineers, and statistics), they also use resources depending on the significance and practicality of what they’re working on, it’s accepted by definition.

Tash,

I can only speak for myself but when I’m using the term consistent I don’t mean that every detail is consistent, I mean that the ridge flow and the ridge paths are consistent. I’m under the impression that when other comparative sciences use this term, they mean that the class characteristics are in agreement but there aren’t individualizing characteristics. But your question brings up a good point, maybe I should write exactly what I mean. The reason I haven’t is because our industry says that an individualization has to have both agreement and sufficiency. Even if you don’t follow the Philosophy of Friction Ridge Identification, this is reworded by SWGFAST’s in their Standards for Conclusions. Since we have to have both agreement and sufficiency, I don’t understand why people are having problems with me saying that I have one but not the other.

[Tash]

Michele,
If I understand correctly you do not report out any “consistent” findings. You make reference of them in your notes? I tend to think that describing the ridge path and ridge flow in your notes is in no way a bad thing.

However, jumping to a full fledged report indicating that a print off of a knife could be the suspect’s print simply because they are the same pattern type may not be a good thing. Even if there are a number of corresponding minutia -at the end of the day if you have not concluded the print to be an individualization and you have not excluded the print to the subject are you still not inclusive? Sure you can mark in your notes that the ridge path is consistent with an arch and there are three points of minutia present in the arch, but should we be reporting this to a court if we have no information as to what degree this consistency means. I just question this.....

[Kasey Wertheim]

Since we have to have both agreement and sufficiency, I don’t understand why people are having problems with me saying that I have one but not the other.

I support this statement and I think it would be just as easy to discuss the flip-side. There may be times where you see dissimilarity, but it isn't sufficient to exclude. Perhaps there is a chance the dissimilarity is in fact distortion, not a true difference caused by different sources. When we are conducting a comparison, and we begin to notice either similarity or dissimilarity, we shift into gathering more evidence for sufficiency. Just because you don't make it all the way to a conclusion doesn't mean you should completely disregard which you were looking at. And it was most likely one or the other (dissimilarity or similarity) just lacking sufficiency to establish a conclusion of agreement or difference.

[mdavis]

I have stayed away from the term "consistent" in reporting latent print results. I prefer to state that "the left thumb of Benny Burglar cannot be eliminated as a possible donor of latent print #L1. There is insufficient detail for positive identification."

This wording accomplishes two things. It reports to the submitting agency (and not necessarily the prosecutor) that there is a great deal of "consistency" or "commonality" between a specific finger on the control and impression L1. It also clearly states that there is insufficient detail in my opinion to make the call absolutely 100% positive. The agency gets the information that they "may" be on the right track. The attorneys get the message that I will not back the call in court and they can cross it off their evidence list.

I realize that this is not entirely consistent with SWGFAST guidelines. There is no "degree of certainty" expressed except that it is less than 100% (inferred) which is all that is needed.

I really believe that if an examiner can justify why they used the procedures they used (reasons that have a logical basis) then judges will allow the evidence.

This is the whole crux of the NH issue. The court has disallowed a latent print identification based not on the question of accuracy of the comparison, credentials of the examiner, justification provided on the witness stand, or guidelines followed, but because the supporting documentation, although in complete agreement with SWGFAST and ASCLD/Lab guidelines and procedures is "inadequate" in the judges opinion.

We need to know what this court sees as "inadequate" and what this court expects. Were there printed "proofs" or pictures taken of the latent and the control? Does the court expect a detailed, written description of every ridge detail (level I, level II, level III?) used in arriving at the conclusion? It is said a picture is worth a thousand words. We have two images, so does that imply two thousand word minimum to describe the two prints and the commonality between the prints? Does anyone expect working latent print examiners to provide that amount of documentation for every latent call made? Can you imagine the amount of written documentation needed to describe every minute detail your brain encountered and considered during that complex evaluation?

Perhaps we over-react to these issues. Unless the remaining 49 states concur with the NH court (not likely), most of us are doing the best we can which is (so far) adequate to provide information to the courts in our areas. If the courts begin to make the process time and cost prohibitive, then we must remember the courts have always been free to throw our opinions out anytime they choose, right or wrong.

[Michele]

Tash,

Yes, our reports only indicate if prints have been individualized, excluded, or are inconclusive (as suggested by swgfast). We have a blank line for additional comments but this isn’t used to justify our conclusions, it’s just used to for additional clarifying information. Our notes are where we justify how and why we arrived at the conclusion.

Mike,

I get the feeling you know far more about the NH case than I do but I’m hoping that I have this right. I’ve also read that the judge in the NH case wanted better supporting documentation. Some people have indicated that the judge is asking for too much, here’s why I disagree. On page 6 of the judges decision it says, “According to the NHDSFL Standard Operating Procedures, an examination must always be contemporaneously documented.”

Did the judge decide that we need to have contemporaneous documentation or did the judge decide that this agency had controls in place but they weren’t following them? If you don’t follow your own procedures then how can you expect the court to rule that your conclusions can be relied on?

Not only did they not follow there own SOP’s but they were also going against ASCLD/Lab guidelines by not following the SOP’s. I seem to recall that their QA manager looked over the case and approved of everything. Does it look good that the QA manager didn’t care that this sop wasn’t adhered to either? This wasn’t stated anywhere but this is kind of what it looks like from the outside.

Also, this examiner testified that blind verification was ideal but it wasn’t done because it wasn’t practical. I mentioned earlier about the practical aspects of applied sciences but even in applied sciences practical concerns aren’t valid when safety is an issue.

Given this information, I think this judge made the right decision. I’m not implying the ID wasn’t a good ID, I’m sure it was, but these days we aren’t only expected to arrive at good conclusions but also be able to explain to the court how we did this, what procedures were used, and why. This case is a valuable lesson for all of us (even if it gets overturned) because hopefully we’ll all walk away with a better understanding of what the courts expect from us (and I believe they want us to have controls in place to diminish erroneous conclusions and they want us to go by the controls we set up).

[mdavis]

Actually, I know nothing of the NH case outside of what S. Ostrowsky has posted and a couple of news clips. The following is the basis of my comments and concerns:

In her ruling, Coffey outlined the administrative portion of the case examiner’s notes, but it is unclear whether she considered the remaining four pages of technical notes (latent print worksheets and photographs) in the case file. Also, Coffey seemingly ruled without regard of certain facts such as: the NHSPFL is an ASCLD-LAB accredited laboratory, our SOP’s are based on ASCLD and SWGFAST guidelines, our SOP’s were reviewed and approved by the ASCLD inspection team, the case examiner and the verifying examiner are both IAI CLPEs, and the lab’s QA/QC Manager conducted an audit of the Langill case file and found that all procedures were adhered to.

Perhaps I am reading between the lines in assuming that everything was in order according to what the lab routinely produces with such cases and that this case did, in fact, follow those guidelines precisely. On second reading, that is not specifically stated, is it? There was also a lack of "contemporaneous" notes, the exact definition of which remains obscure. One would think that four pages of worksheets and photographs would be sufficient to satisfy SWGFAST and ASCLD/Lab? What's missing?

[Pat A. Wertheim]

"Contemporaneous Notes . . . ."

We discussed this at SWGFAST and apparently Judge Coffey's comments were directed specifically at contemporaneous notes during the comparison phase of the ACE process. Personally, I think that is stupid. How can you take "contemporaneous notes" while your eyes are darting back and forth between two fingerprints under the magnifiers? How can you describe in writing the mental process that is occuring as you look for, find, and recognize features at level 1, level 2, and level 3, literally "at the speed of light?"

Stephen Meagher told us at the FBI they actually poke holes in a photograph of the latent print during the analysis phase of ACE and then explain, if asked, that during comparison those were some of the features they look for and find when an identification is made. I objected to Stephen that that does not meet the judge's criticism of "contemporaneous notes taken during the comparison phase." Stephen sort of agreed, but said that it has always satisfied the court in regards to "contemporaneous notes" for ACE. Hey, you can't argue with success.

I think the bottom line is that there is little, if any, uniformity in the way judges rule on these things. Judges come from their own backgrounds, some as prosecutors, some as defenders, some having served in both roles. They bring their own biases and preferences to the job, just as we all do to our jobs (I prefer black powder, you prefer mag. I prefer ninhydrin, you prefer physical developer. I like to start a comparison at the delta, you like to start above the core. I actually like livescan 10-prints, you prefer inked prints. Etc., etc., etc.) It shouldn't be a big surprise if a judge somewhere, sometime, against all evidence and against all logic, rules against one of us. But that certainly doesn't mean the floodgates have burst open and every other judge in the country will follow suit. In fact, I believe it is too early to even comment very much on the NH case because the appeals court has still to rule.

As far as reporting out "Identification (individualization), Exclusion, or Inconclusive," we are still influenced by the old dogma of a century of saying things that way. I rather like mdavis' wording, "the left thumb of Benny Burglar cannot be eliminated as a possible donor of latent print #L1. There is insufficient detail for positive identification." But I don't think my department would go for it yet. Maybe someday.

[RL Tavernaro]

Another way of describing some comparisons that lack sufficiency, yet are consistent, is along the lines of:

"The latent print from item A could neither be identified or excluded as having been made by the right index finger of John Doe."

The specific nature of the comparison is given, without confusing the issue with possibly inappropriate terminology. Even in comparitive analysis disciplines where "consistent with" has historically been used, there has been debate as to its precise meaning, and when or if it should be used.