Dror Article: Bias and the Big Fingerprint Dust-Up

[raybie]

"Perhaps worst of all was the fact that DNA-supported charges were presented not as dead certainties but as probabilities. And what probabilities they were! With figures like "1 in 50 billion" bandied about to establish the guilt or innocence of the accused, little wonder some questioned the value of lawyers, judges, juries, and expensive trials when a geneticist, wrapped in the authority of science, could settle a case" James Watson.- DNA the secret of life p.275

[Gerald Clough]

Here in NZ we do have independent fingerprint experts who do regularly check our Idents that head for court, but I did not see a change in the way we did our work, in some ways I think we appreciate this type of validation that is paid for by the defence not the prosecution.

A substantial part of the reason this is such an active subject here, drawing the attention of Congress through its science advisory, the NAS, is that the kind of defense expert review you describe is decidedly not the norm here. I think that if it had been routine here, the same kind of concerns would have evolved, but much more slowly, more at the normal pace with which most bodies of knowledge progress, through the efforts of a few investigators struggling to fund their projects. And that's why the NAS made a real effort to include jurists, along with academic scientists, latent print practitioners, and forensic lab managers. For instance, the Texas Court of Criminal Appeals, which is the highest state criminal court and the last word on criminal appeals unless the issues can be expressed in Constitutional law, funded the conference on the NAS report in Texas.

Change in legal procedure and rulings on evidence issues evolves very slowing and unevenly in the U.S. Fifty state legislatures writing the law on criminal procedure. Different state appeals courts, all with differing opinions that apply only to criminal trials in their own state. Several different federal circuit courts , often with markedly different opinions applying to cases in their own geographical jurisdictions. So you get situations like that in eyewitness evidence, where some federal circuits hold that the trial court has absolute discretion about excluding expert testimony on the general nature of eyewitness evidence, some hold that it's always error to exclude credible expert general testimony, and some holding that it's only error if there's no reasonable body of other evidence to suggest the identification is correct. And thousands of trial judges, prosecutors, state attorneys general, and defense and appeals attorneys trying to predict the future and guess what their own state and federal courts will say the next time and what the U.S. Supreme Court might say, should they ever agree to hear the issue.

I really think that if trial courts routinely provided defense counsel with the resources to hire their own experts to review such things as fingerprint identifications, both sides would have been reasonably satisfied with figuring that the likelihoods of correct identifications was very high, so long as it was being checked for error, including questionably low threshold, by someone they could safely assume was free from internal pressures and biases. They would have been able to argue conclusions on difficult identifications, on the fairly rare occasions that they came up. If they could have had that kind of support from the courts, defense attorneys might quite possibly be happier with that situation than they will in a few years when a lot of the ongoing and pending research is complete. When the opinions are clinical, experience-based, you have a chance to put up an expert who gets to have a different opinion and who is citing the same experience. But trial courts haven't routinely given them money for that. So, they're kind of in a position they would rather not be in, having to essentially push for research by attacking lack of scientific validity and proposing unknown bias effects, when they would much rather be able to hire their own clinical experts, as they do and likely will always do, with psychological and medical evidence. And it's not just that trial courts haven't provided funds. The defense attorneys themselves don't have much real understanding of the issues and don't think critically about that kind of evidence.

[Neville]

Hi Gerald
I'm sad to hear that things in the 'Land Of Opportunity' have got so bad.

Do you think that starting at grass roots a training program of Solicitors of what and how we do our job is worth considering? We did this in Auckland and Wellington some ten to twenty years ago with what I saw as very positive results. It seemed that the time wasting questions were replaced with intelligent searching questions that could be answered, in a similar way.

This of cause had a positive spin off in that we are just as often called by prosecution as defence now.

[Gerald Clough]

It's something that someone has to take the lead in locally. Here, attorneys are required to attend some number of hours of continuing education. This is arranged by any number of entities, including local bar associations and organizations of prosecutors, etc. They are usually very receptive to forensic programs, partly because they're often more interesting than some of the other material they're offered. But this sort of thing is most often driven by how appeals courts act on cases in which an attorney failed to explore an issue. But defense attorneys have to ask for specific resources from the trial court. Which means they have to know what might reasonably be expected.

I see other large organizations with special interests developing attorney training. I personally think it might be appropriate for IAI and other organizations to think about doing it. There are various national and state organizations of legal specialists that could be recruited as partners.

The diversity of procedure around the U.S. isn't always a bad thing. While it means that some things vary among the states, it also means that the effects of some less well reasoned opinions are limited in the area they can affect. And it's also just an effect of the U.S. really being, in many ways, just what it's called, a union of individual states to which many powers are reserved. Criminal law is one of those powers. And its natural that legislatures often look to other states' laws when they're writing their own. What's illegal in one state is pretty much illegal in another, and the penalties are generally similar. But the power to define crime and punishment is part of the fundamental principle of using national authority only where necessary, such as crime that commonly acts across state lines. And there are a number of interstate compacts and national model codes that tend to normalize things among the states. There is, for instance, a Uniform Traffic Code that is not law itself but serves as a model for states to follow so that there's not a problem of bizarre differences among traffic laws and traffic control signals and signs. And the federal government exerts considerable influence when it wants to by putting conditions on federal money given to states that comply with various desires. The U.S. Department of Justice can have great influence on local law enforcement by providing grant money for states to award for model programs in their state that address whatever goal Justice is after. It all rolls downhill. There is a lot that state government can't force on local law enforcement (try telling a sheriff what he has to do and see where it gets you), but if they have an interest in something, like seat belts, they can provide local grant money for selective enforcement programs.

Federal criminal law, in the form of the U.S. Code, is involved in a relatively small number of criminal prosecutions. For instance, it's somewhat silly for a candidate for national office to promise to address a crime problem by pursuing new federal criminal laws about punishment. Almost all criminal prosecution is done by the states under their own criminal codes. And in a way that's often positive, people have some access to and can exert some pressure on their more local officials who aren't part of a massive national system. A state attorney general, for instance, will respond vigorously to local concerns. That matters when many large but more sparsely populated states lack national influence. I think that, on the whole, folks in most states are just as happy that federal influence isn't greater.

The autonomy of the states makes it difficult or impossible to do something like establish enforceable national standards for any particular sort of forensic expert. The federal government simply can't dictate such standards to the states. They can and do, however, pursue such things as the National Academy of Sciences and National Institute of Justice programs in training and research and tends to set model professional standards that can be adopted by states.