Legal Disclosure of Conflicting Conclusions in Latent Prints

[radarmoose]

Before I go into the meat of this post I want to say I know most examiners and others who post to this forum probably understand what I am going to say. But it is obvious to me from some of the posts on this thread that it needs to be addressed.

I am a relatively new examiner. And I, like Janet, work for a smaller agency and wear the many hats. As such, I feel I need to speak up about some of the posts in this thread.

First, nowhere in Janet's letter do I see anything about her or her fellow examiners at her agency not being trained. The only thing she says is that there are no certified examiners there. They may very well be trained to a high level of competency - we just don't know. Not being certified does not equate with not being trained or not being qualified.

None of the examiners in our office is certified. I am too new but am working my way towards it. One other is scheduled to take his test soon. And the last is a seasoned veteran. The latter successfully completed the comparison phase of the test in an hour and a half, but he was not allowed to be certified because of a bachelor's degree requirement at that time.

Even though our agency is small, our administration sees the value of training. As crime scene technicians (total of 5) we are encouraged to attend a wide variety of courses, and we rotate going to the IAI conference. As latent print examiners we have attended most of the classes by Ron Smith & Assoicates, and we rotate going to an annual AFIS users conference.

The latent print training includes study and examinations under the tutelage of the supervisor for at least 2 years. When deemed ready we are tested by the state. This testing includes AFIS use, a small moot court, and a latent comparison exam. If we pass that we are state-certified AFIS users. All of us have done the above.

We also keep abreast of what is going on in the latent print world. We frequently talk about Daubert issues, recent court cases, the NAS report, the biology of ridges, etc. And we keep up on the SWGFAST guidelines and incorporate them as needed.

It is true that we are not able to take quite as much time as full-time examiners in the examinations of latent prints. We do have to go to crime scenes, do line-ups, etc. But I don't think we are as different as some think. We do our scenes, log in evidence, process the evidence, do latent examinations, and complete our reports. Don't full-time latent print examiners have to log in the evidence they get? Don't they have to process the evidence for latent prints? Don't they have to complete reports (and probably take much more time on this part than us because we don't have the ASCLD requirements)? So, are there, really, any full-time latent print examiners?

There is a vast range of training, experience, and talent among the examiners in our field. We may not be as highly-trained as Neville nor as talented as Pat or Kasey, but neither are most of the other full-time latent examiners in full-service labs. And that does not mean we are not fully competent and qualified to testify as experts to latent print comparisons in court. It also does not mean we are going to miss ID's any more than those other full-time examiners.

Also, I truly believe the smaller ID unit has benefits the larger labs do not. I know the larger labs are needed. They have equipment we don't and provide services we can't. For instance, we frequently utilize their DNA unit, drugs unit, and firearms unit. But, in latent processing and comparisons, I think we provide a more timely and personable service to our agency and community with no decrease in quality. We can more directly meet the requests and needs of our officers and detectives, and with a quicker turn-around time on processing and examinations we may be able to more quickly get criminals off the streets.

I am all for advancing our field in both science and court and for standards of our profession. And I think smaller ID units need to meet those standards. But I don't think I need certification to demonstrate my qualifications to the court. And I don't think we need ASCLD accreditation to demonstrate our unit's adherence to standards of professionalism to the court.

I hope that in the coming years of change well-informed people with level heads will prevail so that we are not changing just for the looks of it. And I hope that change does not preclude smaller ID units. I think it would be a shame if the "small-town grocers" of our profession were forced out in favor of the "Super Wal-Marts".

Respectfully,
Todd

[Neville]

Hi Todd
I for one am all for small units, I hate working in huge offices. A small office has much more going for it in my view.

My main concern is that there is the ability to have idents checked by another qualified member and I don't concider a couple of months in a class makes you an expert.

But I guess that will depend on how you view what an expert is and that is something I am no expert in; as each country will have a different view on that, at the end of the day only a court can qualify you as an expert to give expert evidence in any one court case. You have to prove your expertise at each court case.

In the USA that may only require one year of training, I do not know. But that FBI expert who identified the spanish bomber had one hell of alot more experience than that, so whats the answer? beats me! Can't be just training as the FBI are very proud of there training methods. One thing for is sure who ever checks someone elses idents needs to be of the opinion that this aint an ident until it can be nothing else but an ident..

[radarmoose]

My main concern is that there is the ability to have idents checked by another qualified member and I don't concider a couple of months in a class makes you an expert.

I totally agree, Neville! Even small ID units need to adhere to standards, and that includes verification by a qualified examiner. When needed (examiners gone on vacation or at classes or something) we have taken our ID's to another agency for verification.

One thing for is sure who ever checks someone elses idents needs to be of the opinion that this aint an ident until it can be nothing else but an ident..

Again, I totally agree. I like thinking of each of my ID's and verifications as "Innocent until proven guilty" (I know it's not a foolproof analogy, but it works for me)!

Todd

[Gerald Clough]

Todd,
All you say is true. I too worked in small agencies where print examination was just part of my job. There are indeed some advantages. I had all the time I wanted and could put something down and to work on something else whenever I wanted. I also recognize that there was no way I was ever going to see the range of examples seen by someone who works at it all day, every day. And there was no way I was going to do some of them anything like as fast as someone else. And I wasn't going to have access to the more exotic or expensive processes. I didn't even have another local examiner competent to verify and had to go to another county for that. As an examiner, I'm never going to be in the class of probably most of the people here. But all that's reality even in large units, too. Everyone starts with their bare training and learns. And innate ability has something to do with it, too. None of those things, though, have anything to do with accuracy of identifications.

As to certification, I have my own thoughts about the nature of the IAI certification exam and its virtues and problems. But I think its inherently questionable for someone who hasn't passed that exam (me) to expound on those problems, which is why I don't criticize it publicly. I would say to you to continue to stay involved. In the new multidisciplinary dialogue, everyone has a voice. I believe one of the things that will come in the future will be a lot more thinking on what we want out of competency testing standards. I become more and more convinced that there will be a lot happening over the next ten to twenty years that will refine latent print examination. I do not think it will mean the end of small units and lone examiners in small agencies, but there is a lot that is needed to insure that the examiners who took the minimum courses and never read another word or had active discussions with other examiners since and who have zero awareness of what's happening aren't out there presenting official conclusions. I believe there are a lot of them, and I also believe that their errors can easily sail right through courts without being questioned. But the small agency examiners - and they are many - need to be active in helping develop the field at every level so that the changes advance every useful part of the discipline.

[RL Tavernaro]

One thing for is sure who ever checks someone elses idents needs to be of the opinion that this aint an ident until it can be nothing else but an ident..

You have simply stated a concept that in my opinion is not only of great importance, but an absolute necessity in comparative analysis. I would extend it beyond the verification phase to the initial comparison as well. This seems to be a difficult concept for some examiners to grasp, as evidenced by some of my students. I have even seen a college level textbook assert that once a 'sufficient' amount of matching features are found in two prints being compared, the examiner need not continiue to look at other areas of the prints.
Regards, RLT

[Kasey Wertheim]

So I'm just following up your post with the most natural question that most readers will think...

"Yeah, but what about that full palm print latent?"

It's a classic debate, and I would argue it's all in the semantics of "Sufficient". Nobody I know of traverses through all 900 characteristics in a latent palm print comparison. (correct me if I'm wrong). The reason is because there is a sufficiency threshold - further out there for some, but it's there. But I always love a good debate about the tradeoff between "thorough, complete comparison" and practicality.

-Kasey

[RL Tavernaro]

Yes, the devil is in the semantics. And my comment was a bit short of full articulation.

My intent was not to imply that a complete analysis, comparison, evaluation and documentation of each and every feature in a full palm-print containing 900 level two characteristics, was required or even advisable in every instance. However, I would suggest that a thorough review and search of all common areas of the two prints be conducted for anomalies that could lead to a discrepancy or presence of a second print. And if any are found, they need to be accounted for. Even if the identification would still stand, better to know prior to writing the report than having it pointed out by someone else during testimony at trial.

In the spirit of debate, is 'sufficiency threshold' always a static level, at least for the individual examiner, or is it variable depending on the amount and type of information available in an individual comparison. I would argue the latter. Suppose an examiner doing a comparison reaches a high level of confidence for making an identification (individualization). Subsequently, a previously unseen discrepancy is found in a common area of the two prints that was not previously looked at. Can that change the 'sufficiency threshold' and/or confidence level? Wouldn't most examiners want to review the comparison to eliminate potential error?

(Off subject, but it has always mystified me regarding the Shirley McKie case, where once their "identification" was called into question, the original SCRO examiners apparently stuck to that conclusion without reviewing the comparison - at least that's my recollection of Fiona McBride's testimony at Justice 1... something to the effect of the evidence not being available to them, but it didn't matter as she knew the ID was good)
Regards, RLT

[Kasey Wertheim]

RLT,

And of course, I'm all for a thorough review of areas that could cause problems in court.

I'll also throw in my opinion on your 'sufficiency threshold' questions. First, I agree that thresholds are variable based on the quality (type) and quantity (amount) of detail in the comparison. Second, I also agree that thresholds are variable based on the ability of the examiner, including experience, training, talent, etc. etc.

But on the third question, I agree that an examiner who is confident but observes a discrepancy better lower their confidence level, IF they haven't reached a conclusion of individualization. If such a threshold has in fact been correctly reached, then they won't observe a discrepancy; only distortion of some type that can be articulated. Finding a discrepancy in matching prints is a hypothetical scenario that defense attorney's love to exploit to confuse a jury or throw off an unprepared examiner. Usually we see this appear as the "off the print" discrepancy (but you don't KNOW it doesn't exist, so how can you say it matches?)... or as the "distortion is discrepancy" fallacy (see this black pixel here? That looks like a feature and it's not over here in this here other print, so they can't match 'cause there's a discrepancy and you guys say it just takes one of them there).

So on the third question, I would say once again that the devil is in the semantics. If we're talking about a match, then the examiner can look over common areas to be prepared for challenges, but he/she won't find a true discrepancy - only distortion or damage. And if the examiner isn't confident enough in their determination to KNOW that's all that he/she will find, then they haven't actually made a match yet and therefore there just might be a discrepancy waiting for them... due to the impression potentially being from a different source.

Way to keep us thinking, RLT.

-K

[Charles Parker]

This post is not one that is disagreeing with Pats 'Crystal Ball' as I am sure he has the best crystal ball that Arizona can make, but my Tarot Cards keep telling me something different.

Mr. Tarot reminds me of the Polygraph and how it has been around a long time, not accepted in court and certainly not accepted in the scientific community. However they do fill a place in law enforcement and that is to screen potential subjects---albeit not 100% accurate, but sufficiently so by law enforcement standards to still have a place.

Mr. Tarot reminded me that in 2005 a law went into effect in this state that barred certain types of physical evidence unless it was examined by an accreditiated lab. One such type of evidence was handwriting analysis. The purpose was from my POV to eliminate those DA offices, PD and SO who had a person doing such handwriting examinations. It in effect left just one agency in the state to do handwriting analysis that could be introduced into court. Now the law does not say an agency cannot do it---only that it cannot be introduced in court. Instead of eliminating the smaller agencies from doing handwriting analysis it instead moved it into the realm of polygraph and that it is becoming a tool of smaller agencies to "Screen" that type of evidence and those that might have a run with a trial to send it off to the only lab left that could do it.

Mr. Tarot sees the similiar thing for fingerprints. It will not end it, but move it to an investigative aid type function. Police Departments and S.O. are not going to quit using it, but make it function as a means of "Screening" that type of evidence. Let us face it, 98% of the examinations we do never see the inside of a courtroom. For the most part the P.D. and S.O. do that anyway and send some, maybe most, but certainly not all their evidence on up the 'Forensic Food Chain'. If the PD's and SO's got better at screening evidence then the amount of work going to a state lab would be reduced to maybe cut personnel or at least give them enough breathing room to cut back on the turn-a-round time.

That is just what Mr. Tarot says---Fingerprints are not going away from the smaller agencies but evolving into something new, productive, and beautiful.

[Gerald Clough]

That's a good point. I think a lot of the load on the state lab is simply because there are too few people with basic training in physical evidence in the smaller (which is most of them) agencies. The state lab gets a lot of junk that is really just one level up from the patrol officers bringing in all manner of useless debris from scenes. It takes just as much work to intake and report on no-value stuff as it does to intake and report on evidence with reasonable potential. And in some cases, it forced the state lab to select and work on one or two pieces from several from the same scene and work until they find something and then wait to see if it goes anywhere before processing the rest. Most of the time, this works out okay, but not only is there at least some potential for not discovering something significant, but it can generate a bunch of work later as appeal counsel explores an actual innocence claim and wants the rest worked over.

Of course, there's no assurance that no-value evidence won't one day have to be put through the loop. A good deal of the appeal process is strictly limited to the legal record, and you don't get to have an expert tell the court that the evidence is worthless, and the courts get talked into ordering futile analysis.

I know a number of officers who have been trained in latent examination but who aren't really qualified to do examinations, on account of not having kept up or worked at it much. But they can all recognize when there is an impression with no potential at all, and those smudges don't get sent to the state lab for analysis. They are also quite capable of recognizing that they almost certainly have an identification, and that can help guide the investigation while the fully qualified examiner is working on it. There's always a danger that someone who has been given training deigned to help them evaluate the potential of physical evidence will err on the side of improperly declaring something as having no value. But the reality is that we, at least, will not have our state lab gain the resources to rapidly analyze everything that might be sent to them. It would be interesting to craft training that would be specifically designed to give investigators the knowledge to make reasonably accurate judgments of value. Somewhere between training as an analyst and just being told what analysis can be done.

[Charles Parker]

Gerald a number of years back we were getting a lot of Non-Suitable submissions from patrol officers and the Latent Print Examiners were grumbling about the quality of the submissions. I do not think they realized that patrol officer received no training in what an identifiable latent print was or was not. The LPE response was to stop the PO from doing latent prints and make all the CS Personnel LPE so that only good latent prints would be submitted. Well that went over like a lead balloon. Even as bad as some PO submissions were, they did submit good ones that were identified to suspects (the old blind hog can find a acorn every once in a while statment). To cut the PO out would to also cut out some very good ID made to suspects and would do more harm to the public than help.

So I developed a training program for the PO to recognize suitability and what it was. I showed the LPE the training outline and you would have thought I had killed their first born-----"you cannot do that----it takes years and years of experience to determine if a latent print is sufficient or not for Identification (yea right). So the training program went into File 13.

A couple of years later I did start one on "Capibilities of Physical Evidence", and ran it for about 3 years. The submission and type of evidence improved---and then I left.

I believe given the right training and that PO (the majority) will understand and do the right thing. Now all they have is a bunch of FTO's who did not do it right in the first place and passing down bad habits.

That is just my 2 cents on this subject.