Daubert case?

[Pat A. Wertheim]

A friend emailed me to ask about a rumor that a fingerprint identification was excluded from court on a Daubert challenge in Maryland. The case may be "Maryland v. Brian Rose." Has anybody heard about this? Does anyone know the details?

[Michele]

I got a hold of this copy but there are no dates or signatures or anything (which seems weird to me).

Steve Everist made this link for people to download the document.

I haven't read it yet but it looks like interesting reading.

http://www.mediafire.com/?7bdydwvgtmm

[Dogma]

The trial of Bryan Keith Rose for first degree murder and other charges, is scheduled to begin 10/23/07. This is a death penalty case and the defense is pulling out all the stops. The attorney for the defense has filed over 100 motions including challenges to fingerprints, firearms and DNA along with the usual "cruel and unusual" arguments.
Apparently, Steve Meagher testified for the prosecution during the Frye Hearing. The judge, obviously, found it hard to grasp the examination process and went so far as to disparage Steve's testimony. Since the decision to exclude the FP evidence just came out (10/19/07) I wouldn't be surprised if the trial were delayed pending an appeal of the judge's decision.
Does anyone find it curious that the author of the downloaded document is listed as "Ralph Haber"? Someone must have overturned a rock!

[Michele]

Why is this curious?

[Iain McKie]

I am surprised there hasn’t been more discussion on this latest ‘Daubert’ challenge.

As regular readers will be aware I remain a firm supporter of fingerprinting as a forensic science. Like Judge Souder, however, while I accept that no two fingerprints are identical the likelihood of expert error, particularly when dealing with damaged or partial prints, has never been satisfactorily addressed.

I believe this remains the profession’s Achilles heal despite the best efforts of many individual experts. Representative organisations like the IAI and Fingerprint Society have failed to address the hard issues where mistakes are concerned and until they do such court judgements will continue.

The questions of error rates and the creation of worldwide standards are not going away.

http://news.google.com/news?hl=en&ncl=h ... 8765.story

[Ann Horsman]

Because Maryland law does not permit the prosecution or the defense to appeal judges' rulings on evidence that does not involve a defendant's constitutional rights, Souder's ruling cannot be appealed, lawyers in the case and legal experts said.

Now that's just not right.

[LPE never make mistakes]

Until systemic issues such as lack of objective standards, standardized training, proficiency testing that reflect actual crime scene latents and error rates are addressed, this is just the beginning.

[Charles Parker]

WOW--This has created some interest---15 people have joined this forum in the past 2 days.

Dear LPE Never Make Mistakes you have made an interesting post. I hoping you can claify some issues.

1. Could you provide a definition of objective standards and perhaps provide an example or two from another discipline?

2. Could you provide what you might think would be standardized training for LPE?

3. Could you provide more details on how proficiecy testing could use actual latent crime scene latents? The reason I ask is that every proficiency test I have taken were real latent prints with real inked prints.

4. Could you describe how you would address the issue of error rates?

All of these are interesting topics and I would be interested on how you would address these.

Just asking.

[Rorschach]

Why is it fingerprints are ok with the defense when it's not their guy?

[Pat A. Wertheim]

To start off with Rorschach's question, "Why is it fingerprints are okay with the defense when it is not their guy?" -- Answer: Because neither lawyer wants the court to have the whole truth. They both want to WIN.

"LPE never make mistakes" has some valid questions -- valid to a point (excuse the pun). For a century, fingerprint identification has not had to prove itself in the same way that DNA did before DNA evidence was allowed in court. TWGDAM set the standards before DNA got into court in a big way, if I'm not mistaken. For the field of fingerprint identification to now be held to the same standards is both right and wrong. Right because all of the things "LPE never make mistakes" believes we should have, we really SHOULD have. Wrong because you cannot simply ignore a century of experience that proves fingerprint identification is fundamentally sound.

My position since studying Dr. Simon Cole's work several years ago has been that his recommendations are valid, with one exception. Don't discontinue the use of fingerprints while we are doing the studies implied by "LPE never make mistakes," but continue to allow fingerprint identifications in court as always -- and, as always, with rigorous cross examination allowed.

Lest anyone misunderstand me, that last paragraph says I believe Judge Souder is WRONG! Don't throw the fingerprints out. Allow them into evidence before the jury with cross examination. As we have always done.

The studies demanded by our critics are, for the most part, underway now. When they are completed and validated, our science will be stronger than ever. In the meantime, our science is still just as reliable and accurate as ever.

[Dogma]

Judge Souder is on very shaky ground. She cites US v. Crisp eight times yet ignores its conclusions and only looks to the dissenting view. Judges in Maryland must run for election and I think that Judge Souder just short circuited her career. She has been accused of being overly harsh when sentencing defendants of African descent. Perhaps this is her way of trying to appear even handed. Unfortunately for her, she picked the wrong issue.

There have been news articles and statements by uninformed attorneys stating that this will open the floodgates to attacks on fingerprints. Where have they been for the last eight years?

It has also been cited that in Maryland, judicial decisions regarding evidence can not be appealed unless it involves a constitutional right of the defendant. Well, how about the right to a fair trial? After all, fingerprints can exclude a defendant as well. And, according to Article VI, the accused has the right: “to have compulsory process for obtaining witnesses in his favor.” Why can’t the defense apply for their own expert to examine the evidence? Or, are they afraid of what the expert may find?

Judge Souder relies heavily on the Mayfield error and the subsequent OIG review. But again, she fails to absorb the details of that report. She says that there is a problem with the ACE-V methodology and that the Mayfield error shows that the methodology can not have a zero error rate. But, the OIG review pointed out that part of the problem with Mayfield was that ACE-V was not properly followed. Even the defense expert in Mayfield did not follow ACE-V since he viewed himself as a verifier instead of an examiner. He claimed to be under pressure from the judge to render an opinion before having seen the “best evidence.” And, of course, certifications were revoked.

To those who say that there has been no scientific testing of the premise that valid individualizations can be made from partial latent prints, I offer that “science,” is presently incapable of addressing the vast variety of possibilities presented in comparative analyses. Maybe it’s the scientists and not science itself. If the task is so easy, why hasn’t Stoney, Starrs, Cole or Haber undertaken the research? After all, the research has the possibility of revealing that either fingerprint comparative analysis is or is not reliable. I suppose it is just easier to throw stones and ignore one’s responsibility to be part of the solution. I wonder if research biologists are criticized when they individualize members of certain animal groups based on gross physical features such as the flukes of whales, spots or stripes on various mammalian species and so on. Did they have to prove the validity of this sort of individualization before using the data in their research? How do they prove that they are seeing the same migrating whale that they saw last year?

Could it be that the existing empirical evidence (derived from experiment and observation rather than theory) is superior to anything that a traditional scientific test could provide? Are we to throw away a valuable investigative tool because academia is deficient? Will we have to test for various amounts of Galton detail? Then test again adding in level 3 detail? Then test again adding in various levels of distortion?

Often, in these wrong minded decisions, we see claims that no one is questioning the individuality of fingerprints and the ability to individualize fully rolled impression containing in excess, on average, of 75 Galton points. However, what non-examiners fail to realize is that the process is the same whether the impression is a fully rolled inked or a partial latent. Sure, there may be 75 points available in a rolled impression. But that does not mean that the individualization is made using all 75 points. In fact, the individualization of a clearly rolled print may and usually does require less quantity of detail than for that of a partial latent.

Critics tend to mix issues. They cite a lack of standards for individualization and a lack of standards for training examiners. If we look at the IAI’s CLPE program, it is evident that there are standards, at least for CLPE’s. There is pre-requisite training and experience required and a test based on knowledge and skill. Surely, this is a standard. By the way, we continue to hear that the CLPE testing failure rate is about 50%. That figure has gone down to about 30% since more time for testing was added. Forensic labs require a certain level of training and experience before an examiner may independently examine cases. The accredited labs require periodic proficiency testing. Isn’t this a standard? Must the standard be universal in order to be acceptable? Just as there is more than one way to skin a cat, there is more than one way to achieve competence as a latent print examiner.

Without appearing to “twist the knife,” much of the problem can be laid at the door of the FBI. For years the FBI provided the standardized training in fingerprint processing and identification. But they stopped that effort years ago. And then came Mayfield. It used to be that you could walk into any detective bureau in the land and find a copy or two of “The Science of Fingerprints.” If you see one today, it’s probably being used to prop up a table leg.

Regarding the lack of standards for individualization, I must admit that I have often criticized the vagueness of terms like “sufficient,” “quality” and “quantity.” But, I recognize the difficulty in achieving specificity considering the vast amount of information used to individualize and the innumerable combination of features used by the examiner to arrive at a conclusion.

It would seem to be a good idea that at Daubert type hearings, we need to start educating judges about the comparison process and forget about hitting all the Daubert bullet points. The validity of fingerprint individualization is easier to demonstrate than articulate. Remember all those charts we used to make for court?

In this era of political correctness there is the oft repeated canard that “Perception is reality.” We know what the reality of fingerprint science is. We must work hard to keep the false perceptions at bay. Since the judiciary seems willing to entertain this fool’s errand of challenging the validity of fingerprint comparative analysis, it may be time to legislate the foolishness away.

[Bill]

Just a brief comment from my experience. It doesn't really help anything, but twice this year, during their cross-examinations, defense attorneys tried to pry comments out of me about fingerprint errors in other agencies. The first case, the attorney brought up the McKie case, while the attorney in the second began sort of began by generally mentioning errors occurring in "other agencies."

To their credit, both in both cases, the Commonwealth's Attorneys nipped it in the bud citing that what goes on in other agencies has no relevance to the case at hand. The judges agreed and squelched it then and there.

Of course, that didn't stop them from attacking everything else, but it was one less issue to deal with. Had Brian Rose been charged and tried an hour's drive south of there, we wouldn't be having this discussion.

Bill

[opop]

Bill is absolutely correct. There is no mystery here at all. I lived in Baltimore County for 45 years. On several occasions, various judges have used any excuse to undermine a case where the death penalty is involved. They allow their personal beliefs to influence their conduct on the bench. Do not look for logic in the ruling. There is none.

[Jeremy Johnson]

Is it just me or does anyone else find it a little odd that in the Mayfield case the reason we know for sure that the FBI made an error, was because the Spanish National Police made an ident in relation to the FINGERPRINT evidence. It wasn't as if the offeder came forward and pointed out the FBI mistake by announcing his guilt! To argue against fingerprints on the basis of Mayfield seems a little absurd to me because a fingerprint ident is what ensured the Mayfield error was corrected. You cant have it both ways.

[Iain McKie]

Am I correct in detecting a high proportion of defensive comment.

As a non-expert who has every right to comment on issues that have affected myself and my family for so long I find myself agreeing with Pat however.

[quote]“ My position since studying Dr. Simon Cole's work several years ago has been that his recommendations are valid, with one exception. Don't discontinue the use of fingerprints while we are doing the studies implied by "LPE never make mistakes," but continue to allow fingerprint identifications in court as always -- and, as always, with rigorous cross examination allowed.

Lest anyone misunderstand me, that last paragraph says I believe Judge Souder is WRONG! Don't throw the fingerprints out. Allow them into evidence before the jury with cross examination. As we have always done.

The studies demanded by our critics are, for the most part, underway now. When they are completed and validated, our science will be stronger than ever. In the meantime, our science is still just as reliable and accurate as ever.”[/quote]

While also agreeing with much of what Dogma says I believe that the current debate is absolutely essential and it is not just a question of a few quirky critics or judges having their day in the spotlight. Innocent people have and are being consigned to prison because of incompetent or criminal experts. This surely is a matter of concern for experts and non-experts alike?

In addition American experts cannot isolate themselves and argue that what happens outside of their country doesn’t matter.

While I remain convinced that the questions of error rates and worldwide standards for the forensic sciences is not going away I am also aware of the debt of gratitude I owe to fingerprint experts from across the world who would not stand by and see injustice done.

I have always believed that the experts themselves have the answers to satisfy the critics so please do not run away from that challenge.