CLPEX Chat Board

In my opinion, for whatever it's worth, the Mayfield cae would have eventually been corrected, though it could have been much messier. I doubt if Mr. Mayfield would find any comfort in this theory of mine. It has been said that the Bureau violated its own procedures. This little communitoy of ours needs to be vigilant, and these situations cause great angst and I further stress out about my own work.

Mistakes may happen. Are we mature enough to learn from them? Is the latent print community better now since these mistakes have occurred?

The posting earlier by "LPE Never Makes Mistakes" is thinking logically to the wrong conclusions.

I do not think lawyers believe in objective truth. They say they do, but it seems apparent they do not. To them, the only absolute is there is no truth. Relativism is the standard. It's mostly about winning. They use these techniques to defend themselves against any possible accusation that they did not mount a full vigorous defense for their client. Many believe that is their only obligation. Truth gets shoved asside regardless of, and to the expense of justice.

You can have objective standards and studies from now until some anthropologist digs me up a two thousand years from now and they will never be satisfied with the answers. Their job is to create "reasonable doubt."

Got that off my chest and off to work I go and lose more of my sanctification in rush hour driving.

Bill

Iain, as always, thanks for your objective comments from outside the profession. Yes, I too noticed the defensiveness in some comments.

Bill, as a defense expert myself on a few occasions per year, I have found most defense attorneys simply want an honest, third-party appraisal of the evidence. Their client says he didn't do it and was never there, but the police have a fingerprint. The defense attorney doesn't know how to proceed. Most of the defense attorneys for whom I review cases are satisfied with my conclusion, which, 99% of the time, simply confirms that the police did everything right.

That being said, I will reiterate my earlier statement that no attorney wants the court to have the WHOLE truth. The all want to win. But most of them want to know the truth so they know how to present their side of it.

There are the occasional attorneys for whom the truth has no value, and I have been hired by one or two of them (for whom I will never again review a case, thank you). And even those truthless attorneys occasionally get appointed to judgeships. I have always expected that, sooner or later, some judge with a strong defense bias would get a Daubert motion in his/her court, and there is no way we could ever win that hearing. No way, except through peer pressure from other judges.

I don't know the judge in this case, but from a few emails on the side, it might appear she had some of that defense bias from way back. But just because we lose one case, we have won many dozens of others and will go on winning, with an occasional loss, unless and until the Supreme Court rules on the question some day. We have to remember that although other defense attorneys willl quote this judge in other courts, there is no mandate that other judges follow her thought process. The sky is not falling.

We must continue to defend our science, as always. That is what the criminal justice system demands of us. And we must continue to research, test, and validate our field. That is what science demands of us.

Ann Horsman wrote: 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.

That sounds odd. Is this in the context of an interlocutory appeal (what happened in Mass' Patterson case) or also the final appeal? If the quote is talking about the final appeal, it sounds odd. Normally, one can appeal preserved evidentiary issues (where there was an objection), although the appellate standard defers heavily to the trial court's discretion.

If it is talking about an interlocutory appeal, then it may be that in MD, one can't appeal evidentiary rulings mid-case. (And that's a reasonable rule, else trials would be stalled frequently for disputed rulings and drag on forever.)

Bill wrote:I do not think lawyers believe in objective truth. They say they do, but it seems apparent they do not. To them, the only absolute is there is no truth. Relativism is the standard. It's mostly about winning. They use these techniques to defend themselves against any possible accusation that they did not mount a full vigorous defense for their client. Many believe that is their only obligation. Truth gets shoved asside regardless of, and to the expense of justice.

I've posted several times on the difference between the lawyer's ethical obligation to zealously represent his or her client within the bounds of the law -- which obliges the defense attorney to investigate and challenge all of the prosecution's evidence; and what the attorney may believe about fingerprints (or any other topic) in the abstract. The US Supreme Court says that the prosecutor has an additional obligation to "do justice" -- an obligation not placed on any other attorney.

Objective truth is a tricky thing -- the only person who knows what actually happened in a crime are the participants, and given the common problems I see in clients with mental illness, drug/alcohol abuse, and other issues leading to perception and memory issues -- even they may not be sure what happened in some cases.

And, of course, we get into the usual problems with witnesses and witness memory (and the defendant is, himself, a witness) -- one can have all sorts of perception and memory issues which lead to irreconcilable versions of what happened.

And that gets us to forensics -- done correctly, then can provide some objective information about what happened, but they too are subject to problems with contamination, improper analaysis, confirmation bias, etc.

Is there objective truth -- in some matters, yes. In other matters, there are many preliminary questions that need answers before one can be confident in a "truth".

Pat and Iain,

Re: Studies: Wasn’t it back in 1998 that the critics were asking for certain studies? How long is this research going to take? How many different studies are in the works? How do we know the research that’s being done will ever be finished? How do we know this research is even valid until it’s published and peer reviewed? How long should the courts give us to get our house in order?

Re: Defensive comments: I’m surprised at how quick many people are to blame the judge for making a bad decision or accuse the judge of having biases. Is it possible that the prosecution didn’t present a valid case? Just because we all know that fingerprint conclusions are extremely accurate doesn’t mean that the evidence supporting this was presented well. I didn’t see the testimony in this case but I’ve heard from many people who did. I’ve heard that Ralph Haber was very articulate and very persuasive (and this comes from fingerprints experts). Does anyone know if the court transcripts are available so we can see if this was a bad decision by the judge or if the ideas just weren’t presented well?

Michele

Hi Michele

Research in any forensic field has to compete in the overall law enforcement budgets with new squad cars, new bulletproof vests, CAD systems for the officers in the fields, staffing levels of sworn officers, and a million other things that police administrators put higher on the list of priorities than research into fingerprint identification, which has been accepted in courts longer than just about any other forensic science. My department would be very reluctant to fund research, either the salary for a researcher or the cost of equipment and supplies, except to validate new techniques already on the market for use in our lab. I think that has been the problem. The studies advocated by our critics would require major investments by multiple agencies. The FBI does some research, but I believe they have suffered greatly from budget cuts in the past decade or two, which has restricted the amount of research they can do. In the UK, the Home Office still does research, and in other European countries some research is funded. But in the US, most research is done by individuals such as Glenn, who carries a case load with his department and is devoting his own time and money in pursuit of his graduate degree for which he is doing his research.

You are correct. The critics have been demanding these studies for almost a decade. Maybe a few loses such as Llera-Plaza (even though Judge Pollack reversed himself), Patterson, and now Rose will force the Federal and various state governments to free up some dollars for research. But I wouldn't count on it yet.

Unfortunately research is often the ‘poor relation’ when it comes to funding and money is not set aside for it until there is the political will to do so.

While agreeing with Michelle and Pat perhaps ‘the manure needs to hit the fan’ with some more high profile refusals by judges to accept forensic evidence forcing the political hand.

Perhaps the profession has been too protective and defensive of itself although I can well understand that when good forensic evidence is being presented day after day in courts its loss would be a disaster for crime prevention and detection.

There is however a lot to debate and not only error rates and worldwide standards.

Separating the scientists from the police is an essential first step. The former are not involved in a ‘war against crime’ nor should they become caught up in the culture that such a battle creates. The scientist’s role is the objective analysis of data free from emotional and cultural prejudice.

In addition the ‘adversarial’ approach, where one expert is set against another and where clarity and understanding are the biggest losers, should be dropped and the court should have the power to call its own experts to ascertain the truth affording all defendants and prosecutors a level playing field.

Properly funded forensic research is a must or things will stagger on in the same unsatisfactory way with critics and experts at loggerheads instead of us all working towards the end of developing and improving our forensic services. After all they exist to protect everyone of us against the predatory criminal or the unjust use of power by the state.

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?

Iain, I agree with this point entirely. In my mind, the issue of concern is not a flaw in ACE-V, but a flaw in enforcement of standards and certifications in training and competence. Now, I'll admit this is a personal soapbox of mine, but I believe most of the shocking inadequacies that eventually turn up in the papers have a lot more to do with an examiner who never was much good slipping through the system or a good examiner having a bad day than any kind of flaw with the science.

The questions we go through on the stand to reach "expert witness" status are fairly straightforward and the answers fairly simple. Yet, behind those questions, there is a wide range of skill and experience. (And by 'experience' let me make it clear that I don't refer to a number of years. I fully agree with Ashbaugh's statement that you can have 20 years of experience, or you can have 1 year of experience 20 times). Every one of us can claim that we completed our in-house training and have worked X-number of cases. But how GOOD was our in-house training? How WELL did we pass it? Were we the best darn examiner our agency has ever seen? How about our state? Or did we barely pass? How about all those cases we worked? In how many of them were our mistakes caught in-house before the case went out the door? How many times have we been assigned to a corrective action for something that was a big enough problem to cause worry at an administrative level?

My point here is NOT to paint a picture that no LPE really is an expert. I believe that the majority of LPEs are very good at what they do and take their quality of work extremely seriously. As they should. We bear a huge moral and ethical responsibility in our work.

However, I would contend that there certainly ARE people out there who are just squeaking by and the system is not weeding them out effectively. I find that a FAR more horrifying problem than whether we have a mathematical "error rate" for the science. As everyone keeps pointing out, in the cases where an error has been made, ACE-V has not been applied correctly.

Rather than worrying about the science, which is fine, let's start worrying about what we're going to do about those who do not practice that science effectively. Let's start with stringent universal training standards and with real consequences for those who are not up to scratch. I know, I know, nobody wants to fire anyone or tell them they're doing a bad job because they might hurt someone's feelings and that person with the squashed feelings might sue. Isn't it much worse when your department ends up with a high profile bad ID? Don't we bear a moral obligation to go ahead and squash the feelings of one ineffectual examiner for the good of society and the science and face the consequences?

Oh, and for the record, I'd also like to see the FBI take back up with the standardized classes.

I am bemused by those who are surprised by the defensive posture taken by some posters. Did you expect the ranks of the qualified and informed to line up behind Judge Souder’s decision? Perhaps it is not defensiveness; maybe indignation or frustration or exhaustion. How do we make the deaf hear and the blind see?

Ian: you are correct in your posting when you acknowledge that the problem is not the science of fingerprints but the incompetent practice of the discipline by some “experts.” After all, it was the exclusion of Shirley as the source of Y7 by competent fingerprint examiners that saved the day. I don’t necessarily agree that we need to separate fingerprint examinations from the police operation. Fingerprint examination is probably the only form of forensic testing that can be done efficiently and expeditiously with a minimum of cost and equipment. Relegating it to forensic laboratories only would certainly see justice delayed. It’s really a matter of getting the rest of the police community to understand the practice, limitations and purpose of what their forensic brethren do.

Michelle: If you read the Judge’s decision and research her citations it becomes clear how wrong she is when she ignores the decisions and fails to appreciate the reasoning of other jurists, especially those who conducted longer and more extensive hearings on the subject. Ralph Haber is an articulate speaker. Unfortunately, this silver tongued devil often opines on issues for which he has no qualification. Haber is a psychologist. How this qualifies him to undertake an evaluation of the practice of fingerprint science is beyond me. Indeed, in earlier Daubert challenges, he was prevented from testifying because he lacked any pertinent expertise on the matter. I still have an old copy of his résumé in which he claims to have been accepted in court as an expert in “fingerprint identification.” What was that judge drinking? Here is a psychologist, who claims to be a forensic scientist. The last time I looked, psychology ranked just above voodoo and ghost hunting as a scientific endeavor. In a “60 Minutes” interview a few years ago, Haber misrepresented the IAI’s certification program. It seems that misrepresentation is Haber’s forte. It will undoubtedly be his downfall. Regarding the research, there is much in the pipeline: from NIJ funded projects to the IAI’s revived Standardization Committee. The research has been slow for a few reasons. 1. Although the Souder like decisions get all the headlines, most courts view fingerprints as a done deal and aren’t inclined to entertain challenges to a well established forensic science and, unlike Judge Souder, they defer to existing legal precedent. 2. Defining the nature of the research is daunting. Even Prof. Starrs admits that trying to quantify all the variables considered in a fingerprint examination would be a Herculean task. 3. The database needed to conduct some of the research is in the hands of the criminal justice system and its access limited by law. This limits accessibility by truly independent researchers. Building a separate database solely for research purposes would be daunting and time consuming. 4. The purpose of the research is not to validate the science but to silence the critics. Even ol’ STD (silver tongued devil) admitted in the “60 Minutes” interview that if he undertook the research he would probably find that fingerprint identification would be reasonably reliable (“Nothing in science is ever 100%.”)

Ms. Steele: Like Pat, I also do defense work from time to time and have been instrumental in keeping a few innocents out of jail, though most of what I see confirms that the examiners are doing a good job. I agree that defense attorneys have an obligation to provide their clients with the best defense including challenging the prosecutors and police to make sure they are doing their jobs and doing them properly. However, just as a police officer can’t fire his gun into a crowd to prevent a fleeing felon from escaping, attorney’s have an obligation, ethical and moral at least, to consider the ramifications of their actions and how they will affect not just their client but the practice of law, the safety of the public and the foundations of society itself. To practice in a vacuum is the highest level of arrogance. The attorney who pulls the “Daubert Card” as a last resort to win a case at any cost, well, the list of invectives is too long to choose but one derogation.

Dogma,

I feel the need to respond to a couple of things that you touched upon in your posts.

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.

Maybe I am reading too much into the statement, but I thought this comment was harsh. I am not sure how this is the FBI's fault. You state that they used to offer "standardized training" for the profession, but have discontinued that (for the moment). The fact they no longer offer this free service I do not see how it plays into the MD case. Furthermore, as I have personal experience teaching and working with the next generation of examiners there (about 30 or so), I have seen nothing but positive changes at the FBI as a direct result of Mayfield, particularly filtering down through management (new and old), going all the way back to Mike Wieners, who was one of the FBI examiners involved in Mayfield. The change is remarkable. I have high hopes and aspirations for this new breed of examiner at the FBI. Are there still some old dinosaurs there entrenched in dogma and glory days of the past...sure...the door can't swing fast enough to hit them on their way out. But there is a big change in the wind and I for one am actually thankful a) the Mayfield incident happened and b) it happened to the FBI. To have any impact on the profession, it had to happen the way it did. It was a powerful wakeup call to the profession. I am sure the FBI and Mayfield and Ken Moses probably wish otherwise, but I have seen nothing but positive change from this issue.

Incidentally, I thought that as a result of Mayfield, FBI management discontinued the latent print training. Maybe not directly as a result, but rather efforts would be focused elsewhere within to effect change at the FBI. I could be mistaken about that, but I didn't think it was 'stop the classes' and THEN Mayfield occurred....

I agree that it's unfortunate that the OIG report weighted so heavily in Souder's decision. But she had comments, beyond Mayfield, that I thought had some merit. I only wish she had gone the way of admitting the evidence, but then perhaps addressing the weight of the evidence once in court.

There are many things quite different about this case that are not related to Mayfield and provide a very different set of circumstances. This was not a single identification to the defendant. This was not a suspect developed by AFIS, rather through police intelligence AND THEN several id's were made. There is other evidence in the case to associate the defendant. There even was a level of blind testing done later by an external agency as well....So all of these issues are non-Mayfield-like...

I do think that some of Souder's comments should raise questions about the "standard answers" to some of the difficult questions re: error rates, certainty, possibility someone else may share the same (or similar enough looking) features, etc.

As for the Habers, well, I have mixed feelings. The strongest opinion I will voice here is that I wish they would actually conduct some of the experiments they have suggested that we need to do. Since they are researchers, academics, and authors, it would be more helpful if they tried to conduct some of the research. My frustration hits when I read a paper of theirs or testimony where they say "X is so, and therefore it must be so for Y" (e.g. equating biases of eyewitness testimony to biases in fingerprint work, lack of "thorough" analysis leads to unreliable evaluations, and variations in expert analysis leads to increased errors, etc.). I take issue with those statements since I haven't seen data to support that.

I actually have a recent paper by the Habers with some interesting commentary from Simon Cole and Christophe Champod. The title of the paper is "Scientific Validation of Fingerprint Evidence Under Daubert". It was just released in a stats journal. If anyone wants copies, please contact me. The paper describes, how if we wanted to get fingerprint evidence to pass a Daubert test, how they feel we should test it, to demonstrate the validity of the methodology. Oddly enough some of their suggestions, I have already done the study, or components of their suggestions, but haven't published yet.




g.

Dogma wrote:I agree that defense attorneys have an obligation to provide their clients with the best defense including challenging the prosecutors and police to make sure they are doing their jobs and doing them properly. However, just as a police officer can’t fire his gun into a crowd to prevent a fleeing felon from escaping, attorney’s have an obligation, ethical and moral at least, to consider the ramifications of their actions and how they will affect not just their client but the practice of law, the safety of the public and the foundations of society itself. To practice in a vacuum is the highest level of arrogance. The attorney who pulls the “Daubert Card” as a last resort to win a case at any cost, well, the list of invectives is too long to choose but one derogation.

First, I sit corrected. I querried some of my MD colleagues on an attorney's list, and apparently trial court evidentiary rulings that favor the defense can't be challenged on appeal in MD. (In CT, they could be, but only if the defendant was convicted and filed an appeal; the prosecutor could then raise unfavorable rulings in a cross-appeal. It hasn't come up in my Mass. cases, so I haven't had to look at the specific case law.)

To get to your point, the ethics rules for defense attorneys focus on our loyalty to a specific client. To a large extent, we have to set aside those big issues to deal with zealous representation of this specific client. Now, there is also a duty of candor to the courts and to opposing counsel -- if an attorney knows that the argument is frivolous, then the ethics rules would preclude making it. Its that knows that's the tricky part -- there are times that I've looked at evidence that sounded good, then done the research and found that the expert was blowing smoke (and got away with it, as the case wouldn't be on my desk unless the defendant had been convicted).

Certainly at the appellate level defense counsel (and the prosecutors) talk about the bigger issues because the appellate court is more interested in the broader ramifications of the case because of its precedential value. So both sides will talk about all those big issues. Often, we come to different conclusions. In a fingerprint case, I'd be talking about tighter standards and more careful review of expert testimony before the evidence goes to the jury and saying that closer scrutiny of print testimony would enhance public safety and the judicial system by making it more likely we'd get the right bad guy.

g. wrote:I only wish she had gone the way of admitting the evidence, but then perhaps addressing the weight of the evidence once in court.

Speaking as a defense attorney, I have deep concerns about admitting evidence "for what its worth" and trusting to cross-examination, closing, and maybe jury instructions to guide the jurors.

A fingerprint match is powerful evidence, probably second only to a confession, and/or an eyewitness. It is very, very hard to cross an honest, but mistaken witness. As I recall Loftus did one or more studies showing that a confident eyewitness can override all sorts of problems with the witness and even an exculpatory fingerprint. I suspect that a fingerprint match, even impeached, would override a fair amount of exculpatory evidence for a typical jury, but I'd like to see that research.

Cross-examination is powerful stuff, but it isn't a cure-all. And juries are better than most alternatives, but do come to cases with their own pre-existing beliefs and biases. I think there is a role for a judicial gatekeeper.

Glenn,
I should clarify regarding the FBI. They stopped their field training of fingerprints a number of years ago. At the time, budgetary constraints were the culprit. This was long before Mayfield. Additionally, most FBI training to outside agencies as well as their laboratory services were severely restricted after the Sept. 2001 terrorist attacks. I still recall receiving the memo that cancelled all classes and decimated the training division so that the FBI could concentrate on anti-terrorist activities. I believe that what happened was that a void was created, the results of which we are only now feeling. My chief concern is not the “dinosaurs” who still count points or the new kids on the block who have been trained in Ridgeology. It is those who fell into the abyss between the two methodologies. My very unscientific feeling is the “dinosaurs” are not the ones making the bad calls. Their way of comparing prints and the “standard” they use would keep them away from the “dangerous” prints. When I first trained with the FBI, they were the only game in town and the Glenn’s, the Kasey’s and the Alison’s were but glimmers in their Daddies’ eyes. Dave Ashbaugh was probably still polishing boots for the RCMP! The FBI, being the FBI, at least provided a standard curriculum for latent print examiners. When that training stopped, the void was filled with local FP examiners teaching at their local academies. They may have been good examiners but not necessarily good instructors with an eye toward teaching the science as opposed to conveying a skill. There is also plenty of blame for AFIS. Many agencies thought that this eliminated the need for quality flesh and blood examiners. The AFIS vendors themselves, at times, would sell the bill of goods that they would provide all the fingerprint training needed. In the time of small databases, that was probably not as risky as it is today. And, a number of borderline examiners probably went to court with the false confidence of an AFIS match in their back pockets.

Today, while we still don’t have a standard curriculum, most of the instructors worth paying for are teaching Ridgeology and that in itself is a certain standard. We also have collaborative efforts ala SWGFAST. And lest we forget, the CLPE program of the IAI. I think that it is a bit disingenuous for the profession to receive the criticism of a lack of standards when it is the judges who decide what and who they will accept as evidence and experts and agencies decide who will do what work. As a profession, and even as associations like the IAI or FPS, we have no right or license to challenge who a judge will accept as an expert nor who an agency will employ. The profession has standards. It’s getting the judges and agencies to abide by them that is the hard part. Do you think that we will ever be able to get judges to only accept expert fingerprint testimony from examiners employed by accredited labs and those independently certified via the IAI?

BTW, I would like to see the paper you mentioned. You may email me at: dogmafg@hotmail.com.

For those interested, here is a link to a chat forum for the Baltimore Sun where Souder's decision is being discussed amongst lay people (including an attorney or two). It makes for some interesting reading (kind of funny too).

http://www.baltimoresun2.com/talk/showt ... ?p=2695765

I think this link may take you to the 2nd page of the thread so you may have to go back a page to get to the beginning.

Dogma,

Many of the statements you make about Ralph Haber are true but his qualifications and what he puts on his resume are irrelevant. What's relevant to me is, does he have any good points in criticizing our standards or procedures, such as questioning the error rate of the ACE-V methodology being zero? If this is true, where is the research that supports this? He doesn’t need to be a fingerprint expert to ask this question, just like I wouldn’t have to be a professional photographer in order to say if a picture is out of focus. He may say 10 things that are misrepresented but if one of those things has merit then I think we should look at improving our procedures.

there is much in the pipeline: from NIJ funded projects to the IAI’s revived Standardization Committee

I’m glad to hear that our profession is becoming more proactive. Is there anything published showing what the Standardization Committee is working on?

The purpose of the research is not to validate the science but to silence the critics.

With statements like this, I guess it’s a good thing you don’t use your real name