IAI Position Paper

[L.J.Steele]

The IAI recognizes that it is a tactic employed by opposing counsel in our judicial system and others who may lack sufficient knowledge, training and experience, to question the reliability of the forensic sciences particularly that of friction skin impression examinations. This is to be expected since it is part of an adversarial judicial system. The objective of these tactics is to misrepresent factual data, offer incomplete or misleading data, or attempt to create confusion.

This passage really bothers me as an implied insult to the experts and defense attorneys who have sincere questions about forensic sciences and fingerprints. It implies that only folks who raise questions about fingerprint methods either are ignorant or have malicious motives.

The defense role is to challenge the evidence. I'm uncomfortable with a position that denigrates that role and implies it is wrong for counsel to ask fingerprint examiners to explain their methods and demonstrate that they have properly applied their methods in a specific case. If those hard questions are not asked, the errors that IAI acknowledges happen, albeit rarely, could remain undiscovered, allowing innocents to be convicted and the true perpetrators to remain at large.

It is a violation of an attorney's ethical duty of candor to the court to intentionally misrepresent facts or law, or to intentionally offer misleading information. If the IAI believes an intentional misprepresentation has occurred, it needs to take that up with the trial judge and the attorney's disciplinary body. If, on the other hand, it believes that counsel has misunderstood important facts or studies, then perhaps the statement should be couched in terms of an honest misunderstanding and an offer to discuss the disputed areas.

The IAI acknowledges the concern of some observers who believe, though incorrectly, that the individualization of an unknown friction skin impression to impressions from a known individual is somehow different when comparing impressions representative of the entire finger or palm versus a partial impression. This is a flawed presupposition often cited by those with no practical experience in the fingerprint science, incomplete knowledge of the applied discipline, and or a lack of understanding of the basic principles involved.

I'm also a bit confused by this passage. While the method of comparing, say, two clear inked 10 print cards, and comparing a clear inked exemplar to a smeared latent showing an area smaller than a pencil eraser both involve ACE-V, I would presume that the second task is harder and has a higher risk of error. The challengers are questioning the difference in one's ability to discern individuality using a small amount of poor quality information and the possibility of increased risk of error in those situations.

[Dark Side Guy]

I agree with Ms Steele. While I have never testified against police experts in cases in which I agreed with their identification and the work they had done, I see no breach of ethics in advising my client or a defense attorney of legitimate questions that might be asked of the police expert. Such questions might have to do with the expert's training and experience, previous erroneous identifications, Daubert issues, source and chain of custody issues, etc., even if the identification itself is correct. I do not think that makes me a person who "lacks sufficient knowledge, training and experience, to question the reliability" of fingerprint identification. Quite the contrary, it is the defense's RIGHT to ask those questions. In fact, in the opinion of many in the legal profession, it would be negligent NOT to ask such questions in defense of a client, especially when fingerprint evidence is the only evidence connecting a defendant to a crime. Can you say, "voir dire?"

The IAI acknowledges the concern of some observers who believe, though incorrectly, that the individualization of an unknown friction skin impression to impressions from a known individual is somehow different when comparing impressions representative of the entire finger or palm versus a partial impression. This is a flawed presupposition often cited by those with no practical experience in the fingerprint science, incomplete knowledge of the applied discipline, and or a lack of understanding of the basic principles involved.

In the case of Brandon Mayfield, I wonder whether the fact that the latent print was a distorted, partial print had anything to do with the erroneous identification. Would the FBI have made the same mistake if the latent print had been whole and clear?

[Patrick Warrick]

I'm also a bit confused by this passage. While the method of comparing, say, two clear inked 10 print cards, and comparing a clear inked exemplar to a smeared latent showing an area smaller than a pencil eraser both involve ACE-V, I would presume that the second task is harder and has a higher risk of error. The challengers are questioning the difference in one's ability to discern individuality using a small amount of poor quality information and the possibility of increased risk of error in those situations.

Thus the statement;

This is a flawed presupposition often cited by those with no practical experience in the fingerprint science, incomplete knowledge of the applied discipline, and or a lack of understanding of the basic principles involved. Qualified examiners know that the process is the same in both instances and the threshold for individualization is dependent on the quality and quantity of information available in and not the size of the unknown impression.

[Ann Horsman]

I have often wondered why the defense counsel doesn't have their own qualified expert examine LP evidence for court purposes?

[Gerald Clough]

It really just comes down to what counsel for either side should be doing. It's easier in the most major criminal cases. The ABD Death Penalty defense guildelines include:

With the assistance of appropriate experts, counsel should then aggressively re-examine all of the government’s forensic evidence, and conduct appropriate analyses of all other available forensic evidence.

The key there is "with the assisteance of appropriate experts." There should rarely be any objection to providing funds for an expert in a death case where a fingerprint is an important part of the fact case. But as the significance of the crime decreases, so does the ability to get money. Imagine a really dedicated defense counsel who sets out to prepare for a case without an expert.

He likely finds the most easily located books on the subject. Most will be of some help, but not much, being mostly about terminology and technique. He will learn a bit of how it's done. He will also find the more sophisticated works, but he will also find Cole. A Web search for a likely term, like "fingerprint error" will turn up accounts of Mayfield, Cowans, and others. He might even find this board. His effort will likely leave him with the notions that:


1. The idea that he previously shared with the lay public that fingerprint identification is infallible is false.

2. Some impressively credentialled people are severe critics of the discipline and its reliability.

3. Significant errors have been made, even by those who should be least expected to make them.

4. Within the discipline, there is ongoing debate about how to insure accuracy or even if such is possible.


And this would be quite a gung-ho attorney with time to do the research to even get this far. The natural result is, it seems to me, largely the kind of questioning that woult be seen as an attempt to confuse. And, with a prosecutor who is also poorly informed, the result will indeed likely be confusion.

The vast majority of criminal case invloving fingerprints are relatively minor felony cases of burglary, forgery, etc. In my experience, the far more common situation is that in which the defense counsel went in with no more knowledge than the average lay person and made no challenge and asked no meaningful questions.

None of this is to say that adequate knowledge will result in well-founded and entirely honest questioning in court. The motives of the defense are inimical to the State, as the State's are inimical to the defendant. And whatever the forensic discipline, there are experts of all persuasions available for hire.

[L.J.Steele]

I have often wondered why the defense counsel doesn't have their own qualified expert examine LP evidence for court purposes?

I work in appeals, so I have to take the trial record as trial counsel developed it. (Despite sometimes mentally shaking my head at counsel's failure to ask key questions.) In a few cases, I've had evidence that looked sufficiently odd that I've asked for and gotten permission to have an expert look at it with an eye to referring the case directly to a habeas attorney if there's a problem, but it is hard to convince the folks authorizing the checks to let me do that at the appeal stage because it is tangental to the appeal itself. So, with that caveat in mind....

As I've mentioned here before, there are several issues:

Money is the big one. If the defendant doesn't qualify for appointed counsel, he or she may not be able to afford experts to re-examine the evidence, expecially if there's multiple forensic disciplines involved. If the defendant does qualify for appointed counsel, then the attorney has to get approval to hire an expert either from the trial court or the public defender's office (varies by state).

Availability of qualified experts is another issue. There are a limited number of well-qualified folks who take defense cases. Finding a good expert who has time for this specific case can be hard. And a bad expert might be worse than no expert if he or she erroneously confirms a mis-ID. Again, the defense apparently had two experts (identities still unknown) in Cowans who missed the error. If you look at Cole's list of 20ish mis-ID cases, you'll see several others where defense counsel missed the error at the trial level. That certainly gives me pause when I'm consulting an expert.

Knowledge of when to hire an expert is also a problem. Remember that attorneys often dont' have a science background. Law school evidence classes generally focus on the legal rules, not on underlying scientific questions. (I gather there are more forensic-oriented electives out there these days, but I don't know how many get into the technical issues.) As I've mentioned, when I was a young defense lawyer fresh out of law school, I tended to take forensic reports at face value. Even with the publicity around the Mayfield error, I suspect there's still lots of attorneys who don't know when to look behind the report, or what to look for as signs of a potential problem. (And I think Pat W's right that fraud/fabrication issues are far more likely to come up than a good-faith mis-ID, and there's not a lot of guidance out there for attorneys on warning bells in that area.)

Client's Desires are also important. As I recall from Pat W's fabrication/fraud talks, there were a number of cases of police fabrication of print evidence where the client chose not to challenge the evidence and took a plea, despite being factually innocent, because he or she didn't expect to be believed and didn't want to risk a higher sentence after trial. (Sentences after trial are usually longer than those offered in a plea bargain.) Worse, if the client has a poor memory or blackout issues (mental health or substance abuse issues), he or she may not know for certain whether they are guilty or not and may be convinced by forensic evidence (even if wrong) of guilt and chose to take the plea. [Check out Saul Kassin's false confession webpage for some articles on these issues.]

[RL Tavernaro]

...there were a number of cases of police fabrication of print evidence where the client chose not to challenge the evidence and took a plea....

I suspect that this may often be true because the defendent is factually guilty & knows it. Many cases of fabrication/fraud of fingerprint identification stem from a valid law enforcement belief that an individual is guilty, and as an inappropriate effort to provide a final evidential nail in the coffin. Unfortunate as an invalid fingerprint ID may be, it does not necessarily preclude the possiblility that the defendent is actually guilty.

I have known defense lawyers who profess to actually prefer not to know if their client is guilty of the charged crime, as a knowledge of quilt could ethically interfere with defense strategy.
Regards, RLT

[sharon cook]

The methodology for comparing two clear inked prints vs. comparing one clear inked print and one smeared latent print is EXACTLY THE SAME. Whether one is more difficult than the other is not the issue.

The "motives" of both the defense and the prosecution should be EXACTLY THE SAME: to see that the defendant gets a fair trial. It is a shame how neither side seems to understand that anymore.

[Gerald Clough]

The "motives" of both the defense and the prosecution should be EXACTLY THE SAME: to see that the defendant gets a fair trial. It is a shame how neither side seems to understand that anymore.

That is specifically not the motive of the prosecution and defense in the adversarial system, except in the sense that they operate as part of a system intended to provide fair trial. The judge is there to insure fairness by applying the law designed to promote fairness. This is not an obvious evil that the advocates are entirely devoted to serving their respective sides, to winning if you will, although there is plenty to criticize, as there is in every other system. The adversarial system obtains mostly in the "common law" countries. Under the theory of adversarial justice, justice is presumed done when one side convinces the judge or jury of the rightness of their position under law. So, it's not something either side forgot. It's not the role of the "sides" to be fair to each other to any degree but what is defined and required by law.

It probably works about as well as the inquisitorial system in place in Europe and South America, where judges run the investigative inquiry and find fact and seek truth.

[Pat A. Wertheim]

Lisa says,

The IAI recognizes that it is a tactic employed by opposing counsel in our judicial system and others who may lack sufficient knowledge, training and experience, to question the reliability of the forensic sciences particularly that of friction skin impression examinations. This is to be expected since it is part of an adversarial judicial system. The objective of these tactics is to misrepresent factual data, offer incomplete or misleading data, or attempt to create confusion.

This passage really bothers me as an implied insult to the experts and defense attorneys who have sincere questions about forensic sciences and fingerprints. It implies that only folks who raise questions about fingerprint methods either are ignorant or have malicious motives.

This bothers me, too. It sums up almost exactly what the SCRO was saying about me in 1999 and 2000 regarding my testimony in the Shirley McKie case. According to them, I had only "two weeks tuition" in fingerprint work; I lacked any knowledge, training, or experience; and I was misrepresenting factual data and confusing the jury. I have known defense experts who fit that description, but I know sincere critics of our science who do not fit that description but merely want us to abandon a century of dogma and update our science.
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"Dark Side Guy" says,

While I have never testified against police experts in cases in which I agreed with their identification and the work they had done, I see no breach of ethics in advising my client or a defense attorney of legitimate questions that might be asked of the police expert.

Twenty-five years ago, I thought that attitude was unethical. I believed that no ethical person would question a good identification. My beliefs have shifted with time. As readers of this forum know, I do defense cases outside the state of my employment, and I agree with "Dark Side Guy" on this one.
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Ann asks,

I have often wondered why the defense counsel doesn't have their own qualified expert examine LP evidence for court purposes?

Trust me, Ann, a defense attorney may well hire an expert and, if the expert agrees with you, you and the prosecution may never find out about it.

On the other hand, I did a job for one well-known defense attorney a few years ago in which I confirmed everything the police did, including the identification, was correct. The defense attorney then went in search of a second fingerprint examiner and found one in the person of a document examiner who did fingerprints as a second discipline. The document examiner opined that the latent print was of no value. Of course, he was the "expert" the defense attorney called to testify.
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Lisa refers to presentations I have made on fabrication of fingerprint evidence, such as the current case in South Africa (see related discussion on this website). In those presentations, I have been known to make the statement that a defense attorney should always question a single fingerprint identification in the absence of any other evidence implicating the defendant, especially if he has a gut feeling the defendant is innocent. In my research, I found that a high percentage of fabrications fit into that category.
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Bob Tavernaro says,

...there were a number of cases of police fabrication of print evidence where the client chose not to challenge the evidence and took a plea....

I suspect that this may often be true because the defendent is factually guilty & knows it. Many cases of fabrication/fraud of fingerprint identification stem from a valid law enforcement belief that an individual is guilty, and as an inappropriate effort to provide a final evidential nail in the coffin.

Bob is partially correct. I found that most cops who fabricate fingerprint evidence do *believe* the suspect is guilty, and I believe most of the time they are correct. Such was the case in the first fabrication I exposed. The problem is that when a detective *believes* a suspect is guilty, the detective is not always right.

But in my research, I found cases in which the cop couldn't have cared less whether the person against whom he was fabricating evidence was guilty or innocent. One cop fabricated over 70 cases by lifting latents from the hood of his squad car after he had frisked vagrants. He then slipped those latents into cases he processed from scenes a day or two later. The vast majority of those vagrants pled guilty. I think that if any of them were guilty of the specific crimes with which they were charged, it was a bizarre coincidence. I think all those who pled guilty did so because they were destitute and "you can't beat fingerprint evidence," so they took a plea rather than be convicted for a stiffer sentence.
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Sharon comments,

The "motives" of both the defense and the prosecution should be EXACTLY THE SAME: to see that the defendant gets a fair trial.

"SHOULD" is the operative word in that statement, and actually, it is not exactly correct. It is an imperative for the prosecution is to make sure the court is aware of all of the inculpatory evidence, and it is an imperative for the defense is to make sure the court is aware of the exculpatory evidence. In that regard, neither side wants you to tell "the whole truth." For example, the prosecutor doesn't want you to discuss the possibility that a fingerprint on the exterior of a recovered stolen vehicle might have been left by an innocent person. Likewise, the defense attorney will propose some highly improbable, but not impossible, scenarios for legitimate access and try to get you to agree that "it's possible," as if that were the most likely case.
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Gerald speculates that our criminal justice system,

probably works about as well as the inquisitorial system in place in Europe and South America, where judges run the investigative inquiry and find fact and seek truth.

When Lisa and I were doing an expositional debate at the New England Division Conference earlier this year, during the question and answer period a member of the audience asked me my opinion of our criminal justice system. The questioner prefaced his question with a comment on how screwed up our system is in the US. My answer was something to the effect that, "Yes, we do have the worst criminal justice system in the world -- except for all the rest." Having testified in a few other countries, I have come to like our courts much better than I used to. I know there are other good systems out there, but ours is definitely NOT as bad as we tend to think it is in our more myopic moments.
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Back to the "Position Paper," I have to agree with Lisa when she says,

The defense role is to challenge the evidence. I'm uncomfortable with a position that denigrates that role and implies it is wrong for counsel to ask fingerprint examiners to explain their methods and demonstrate that they have properly applied their methods in a specific case. If those hard questions are not asked, the errors that IAI acknowledges happen, albeit rarely, could remain undiscovered, allowing innocents to be convicted and the true perpetrators to remain at large.

If we can't answer those questions intelligently and articulately, we have no business taking the stand as an "expert." And even if we can answer the questions intelligently and articulately, we have to expect sooner or later that a judge STILL won't see things our way. In Judge Souder, the odds finally caught up with us. Does that mean we should give up? Of course not! Does it mean that even we ourselves should question what we do? No, of course not! What we need to do is redouble our efforts to affirm and validate our science, but, at the same time, realize that "You can't win 'em all."

All in all, I agree with the position the IAI takes. But I believe the statement itself has a biased tone that was unnecessary.

[L.J.Steele]

That is specifically not the motive of the prosecution and defense in the adversarial system, except in the sense that they operate as part of a system intended to provide fair trial.

Both attorneys are subject to the applicable legal code of ethics -- which includes a duty to zealously represent their respective clients within the bounds of the law and a duty of candor to the tribunal. In addition, the prosecutor is charged seperately with a duty to, as the Supreme Court put it "do justice". In theory, the prosecutor's job is not to win if the victory would be unjust. In practice, figuring out what's just can be very tricky.

The methodology for comparing two clear inked prints vs. comparing one clear inked print and one smeared latent print is EXACTLY THE SAME. Whether one is more difficult than the other is not the issue..

I'm probably not being clear -- if I were raising a print challenge at trial, I'd be questioning whether the degree of difficulty affects the reliability of the portion of the ACE-V method that depends on the examiner's experience and skill in determining whether ambiguities in the latent print result in a decision that these are explicable distortions and thus a match can be made on the remaining data, inexplicable dissimilarities resulting in a non-match, or mean that no conclusion can be drawn. For a 10 print match involving two good-quality exemplars, there's enough data that the subjective aspects of ACE-V don't matter much. For a difficult latent to exemplar match, those subjective elements may become more important. As I recall Dror's research, biasing information didn't override clear matches or clear non-matches, the problem arose in the ambiguous situations and that's the situations I'm concerned about -- how well does ACE-V work at those margins.

Think of it this way. If you had someone who was very good at 10 print work -- had done it for years using ACE-V -- does that mean he or she would be able to reliability make an ID on the hardest case your most experienced latent print examiner matched also using ACE-V? Is the method alone enough, or is it a matter of method plus experience?

[Carl Speckels]

IMHO, It is definitely method plus experience plus ability/skill plus knowledge plus daily disposition, plus, plus, plus. As many of our Latent Print ‘Dream Team’ members have instructed and postulated over the years, and as I have experienced as a LP trainer, there are subjective elements that exist in each of the ACE steps. ANALYSIS – It’s likely that two different examiners will place different quantitative values on the degree of latent distortion, will differ in the degree of tolerance and consequently the value given to an area of FR detail, will differ in the degree of uniqueness that an area of FR detail contains, etc. COMPARISON - It’s likely that two different examiners will choose different target groups or starting points to begin the comparison or will approach the comparison differently by using differing thought processes to interpret the data, i.e. seeing FR data as an aggregate, applying aspects of triangulation, FR measurements to include the consideration of ridge widths, lengths and relative positions, they will also likely place different unquantifiable values on the FR data that is being interpreted simply based on their personal experience with that type of 2nd/3rd level detail, even the examiner’s placement of the latent(s) in relation to the exemplars may vary causing varying perspectives of the same data, etc. ANALYSIS – It’s likely that two different examiners will use different areas of FR data to arrive at what both will declare a ‘definitive’ conclusion. It’s not necessarily uncommon for an examiner to identify a latent that had been declared inconclusive by another. So, yes, there are many subjective aspects to ACE(V). However, this is expected because these are all products of human thought and reasoning. It doesn’t invalidate the bottom-line conclusion. I believe that most examiners apply these thoughts/reasons/interpretations in an organized fashion that is consistent with the scientific method, i.e. ACE – V. Millions of people around the globe manage to locate and drive away in their own car by applying a very cursory and informal method that allows them to identify their own car. We all do this with a little bit of 1st level detail (make, model, color) and minimal 2nd level detail (dent in the quarter panel and the sunglasses hanging from the rear view mirror) and we manage to always drive away in the right car (of course having the right key helps). The point is that properly TRAINED examiners apply very conservative and consistent methods (albeit in varying ways) that enable them to arrive at a very accurate conclusion. Therefore, when the data is interpreted correctly using a systematic and organized method a person with the proper training, knowledge and experience will get it right because the ‘amount’ of available information will have been part of the consideration/interpretation process.

[Dark Side Guy]

As a guy who thinks there can be ethics in working for the defense, and one who tries to be ethical, I took offense at the inflamatory wording that also seemed to upset Ms. Steele when she started this discussion.

Why did the IAI issue a position statement in response to the ruling of some judge in Maryland, just because she ruled against everything the IAI believes in? But they won't issue a position statement regarding cases in which the police are wrong? Like Mayfield? Like McKie? Like the case Wertheim, et al, just testified in? Could it be because the IAI is all about police, anyway?

[Bill]

I believe if those of you in the legal profession who feel defensive about fingerprint examiner's and law enforcement's attitudes about attorneys, it's not without some justification.

I would direct your attention to an ABA study of American's perception of lawyers in 2002.

http://www.abanet.org/litigation/lawyer ... ptions.pdf

If you feel offended, that's your personal choice. You choose how you wish to react to a statement. You can feel offended or feel nothing. The choice is yours and you have chosen how to react.

[Michele]

I think one problem may be that people are arguing the merits and demerits of our profession based on different criteria.

Many fingerprint supporters are basing their opinions on their knowledge of scientific research, empirical data, and statistical information. The people involved in the legal field (and maybe the critics) seem to be weighing the merits based on their own knowledge (which we would expect to be less than someone who works in the field) and court admissibility rules. Then the different sides take advantage of the differences in agreement to show that there’s not consensus about that particular field.

I think an important element of being objective is to address the issues of both sides (scientific issues and admissibility standards).

I think the IAI position sounds fine (for the most part) but it ignores any admissibility standards. Highlighting what we like and ignoring what we don’t want to address doesn’t seem to show that we’re as objective as we claim.

Since each court may have different admissibility standards, one position paper can’t be written that covers every situation. Since this was written for the Baltimore Case then I would have thought the admissibility standards of that area should have been mentioned and addressed. Not only are they not mentioned, nothing in this position paper (except for the file name) mentions that it’s for the Baltimore case.

I also think it’s important to mention that admissibility standards seem very vague to me (not just for this case, I’m speaking of Frye, Daubert, Frye-Reed, etc.) and it seems like they aren’t only understood differently by the different sides but they’re also interpreted differently by people on the same side. Having court standards that are this vague seems to invite challenges.