CLPEX Chat Board

Graham F wrote:I believe what Sharon was alluding to was, that there would be a high probability that to conduct a DNA analysis of a latent that had been identified would result in the destruction of the original latent evidence. This is something the defense attorney would undoubtedly jump on, in that there is no latent evidence remaining for them to scrutinize with their own expert, if they so wished. You could photograph the latent first before its destruction by the subsequent DNA analysis and just retain the photo as the only evidence. This just provides another string to the bow of the defense.

Not exactly. There are rules in place for destructive testing. Usually, the prosecutor notifies the defense attorney that they want to conduct a destructive test (assuming it isn't time critical). The defense is given a chance to examine the evidence first, observe the testing, and otherwise take whatever steps it wants. If that isn't practical, the court will look at the situation and decide whether the prosecution (which in this case includes the police and the labs) acted in good faith when destroying what the defense claims is potentially exculpatory evidence and whether there's any reason to believe the defense was harmed. Assuming there are good quality pictures, it is going to be hard for the defense to show harm in a typical case.

But again, I was thinking about this more as a possibilty for a study attempting to validate fingerprint matching using a second type of analysis on the same evidence, rather than as something ready for routine use in the crime lab. DNA testing is darned expensive, and I had gathered from the articles that testing of prints was still very experimental. I hadn't realized the problems were quite that extensive, I'd assume some of them could be controlled in a study if the experimenter generated the prints (attempting to match the quality found in typical crime scene work.)

Graham F wrote:What if the latent is from a commonly handled item? If the DNA does not match the suspect does that mean that the latent has been misidentified? (Inwardly laughs to himself).

Not to underestimate the inguenity of my fellow-attorneys, but most of these questions have been resolved in the DNA cases -- mixed sources, sources contaminated by other sources at the scene -- I suspect the whole mess will get tossed to the jury to sort out after the dueling experts testify. If this became a commonly used technique, the jury would have to deal with the inconclusive or inconsistent results the way it resolves them in cases where other evidence is in conflict -- witness says defendant shot the victim, defendant is arrested within minutes and tests negative for GSR, for example.

Pat A. Wertheim wrote:With a million judges in the US (anybody got a better number?), does anyone think that there aren't a few out there who sooner or later wouldn't throw fingerprints out? That's not to say that we shouldn't continue to try and improve our science, it's just to say that no how good we get, there will still be room for more improvement. And as long as there is room for improvement, there will be lawyers and judges only too eager to point that fact out.

Just to be fair, there are also presumably pro-prosecution judges out there who would let in evidence that is obviously flawed to an impartial observer. That's one reason I'd be somewhat less worried about a trial judge ruling (yes, it will be a thorn for y'all, but judges will likely be more interested in the reasoning than in the fact of the decision), than I would be about an appellate court ruling. (A group of judges instead of just one, usually with lots of time to think about the case, the evidence, and the reasoning.) Even then, it will vary by the appellate court's reputation among its peers.

baltimoresun.com
Judge rejects request to toss out fingerprints
He 'respectfully' disagrees with ruling barring them
By Jennifer McMenamin

sun reporter

November 1, 2007

An attorney for a man charged with murder in an armed robbery in the Woodlawn area asked a judge yesterday to throw out fingerprint evidence in what appears to be the first request of its kind since a Baltimore County judge ruled that such evidence is too unreliable to be presented in a death penalty trial.

Baltimore County Circuit Judge Patrick Cavanaugh didn't wait to hear prosecutors' arguments against excluding the fingerprint evidence before turning down the defense attorney's request.

"I don't know that we have to have a hearing," the judge said.

Later, he said, "In this case, a jury is going to be the trier of the facts."

Cavanaugh, who has developed a reputation for dispensing tough sentences and tough comments to defendants, said he had read and "respectfully" disagreed with the decision of Judge Susan M. Souder.

She ruled Oct. 19 that prosecutors in a capital murder case could not offer at trial the fingerprint evidence that they say links a 23-year-old Baltimore man to the fatal shooting of a Security Square Mall merchant last year in the shopping center's parking lot.

In her 32-page decision, Souder characterized fingerprinting as "a subjective, untested, unverifiable identification procedure that purports to be infallible." The judge acknowledged the technique's nearly 100-year record as a crime-solving tool but concluded that such history "does not by itself support the decision to admit it."

Local and national experts characterized Souder's ruling as unprecedented and predicted a flurry of similar requests from defense attorneys challenging fingerprint evidence, which has long been considered a mainstay of police work.

Prosecutors in Baltimore and in Baltimore County said yesterday that they knew of no such challenges except the motion heard by Cavanaugh.

In that case, defense attorney Jane Loving told prosecutors late last week that she intended to challenge the fingerprint evidence at the heart of the murder case against her client, Kevin Banks.

"I think Judge Souder made some wonderful points," Loving said after yesterday's hearing. "But [Cavanaugh] had her opinion in front of him, and he just doesn't buy it."

Banks, 22, of West Baltimore was arrested in May after investigators matched his fingerprints to seven latent prints left on the trunk and windshield of a car parked at the scene of a fatal shooting in March.

Jamar Mackie, 24, was killed March 31 after he and two friends were robbed by two men with a 9 mm handgun.

Witnesses told police that one of the robbers opened fire after Mackie and a friend began to run. The gunman and his friend were chased by a pit bull on the way back to their car, a burgundy Buick LeSabre, according to court documents. Witnesses told police that the robber without the gun jumped onto the trunk of a another car parked nearby to escape the dog.

Craig S. Schrott, a Baltimore County homicide detective, testified yesterday at the pretrial hearing that the car was covered in dust and that fresh fingerprints were clearly visible.

The prints lifted from the car - including a palm print - were not linked to Banks until detectives in Baltimore questioned him about a nonfatal shooting there four days before the Woodlawn homicide, Schrott said in court.

After finding that the city shooting involved men who fired at least 17 shots from two 9 mm handguns and fled in a burgundy Buick LeSabre, county police asked their fingerprint analysts to compare the prints lifted from the Woodlawn crime scene to those of the suspects in the city case. That's when Banks' fingerprints were matched to those lifted from the dusty car, Schrott testified.

Banks is not accused of firing a gun in the Woodlawn-area killing but is charged, along with a co-defendant, with first-degree murder, armed robbery and handgun offenses.

In declining to grant the defense attorney's request to bar the presentation of the fingerprint evidence against Banks to a jury, Cavanaugh mentioned the "abundance of cases" in Maryland in which judges have upheld the reliability of such evidence.

Echoing a point raised in prosecutors' request to Souder to reconsider her ruling, Cavanaugh compared fingerprints to X-rays.

"Do you want to attack them next?" the judge asked Loving, the defense lawyer. "You can take X-rays to three different doctors and get three different readings."



jennifer.mcmenamin@ baltsun.com

Copyright © 2007, The Baltimore Sun

So heres the drum, in a criminal case you have a perfectly good latent print and quality exemplar, no dramas re the identification. The court objects saying the science of fingerprint identification is unreliable so an idea comes up that we should be able to support the fingerprint science evidence with DNA matching of the same fingerprint material (sounds like McKie?). Within the same court another case appears where the same defendant is claiming not to have a criminal history but exemplar fingerprints taken over a period of time are used to prove the matter. There is no dispute about the reliability of the fingerprint evidence and no call for DNA supportive analysis. What is lacking here is knowledge by the court of what constitutes fingerprint science. The same expert presented the evidence in both cases using the same methodology. In both cases it was the source skin of the defendant that produced all the fingerprint evidence and the experts confidence was that the same source skin could reproduce the same evidence using the same conditions. Now that would be an interesting experiment about reliability. And if there was an argument about subjective conclusions we could run both cases latents and exemplars and the reproductions through the NAFIS computer and our confidence would still be the same result. Would the court agree? On what scientific basis could they disagree?

Judge Sounder states in her written opinion that “Mr. Meagher incredibly testified that there is no error rate in ACE-V as it is an infallible methodology. He attributed all erroneous identifications to examiner error in applying the methodology. Mr. Meagher was neither credible nor persuasive in this regard. Without impartial testing, however, whether or not the methodology is infallible is unknown.” The methodology does not have an error rate, in this regard, Mr. Meagher is correct. A methodology is merely a series of steps to achieve a particular end. A methodology by its very definition cannot have an error rate (which is not the same as having an error rate of 0%). The methodology does not have an error rate because the methodology, if followed correctly, will always have the same outcome. Does a recipe have an error rate? No, if the ingredients are measured correctly and mixed in the correct order, then cooked at the correct temperature for the correct time, a particular dish will result. If the recipe is not followed correctly by the cook, we have a bad dish and a bad cook.

The ACE-V methodology is used in the examination of friction ridge prints, inked and latent, complete (sic) and partial, and has been accepted as the methodology for this purpose.

In the examination of latent prints, the interpretation of the outcome is the actual question. This is the purview of the examiner. As in the Llera Plaza opinion by Judge Louis Pollack, the training and experience of the examiner are the real question. Certified laboratories have the ability to document the number of comparisons conducted, the number of correct identifications and the number of erroneous identifications, if any, that have been made. Calculations of the error rate of the examiners within the Laboratory could be calculated.

For litigation purposes, the methodologies used by experts to reach conclusions are required by law to be reliable (not infallible). Also experts are required to apply the methodology reliably, but those experts are not required to be infallible. Previously in this written decision, Judge Souder actually stated that examination results need not be infallible to meet the standard for due process. As fingerprint experts we should not be reluctant to admit that fallibility exists in our population and point out that our error rate is asymptotic to zero.

It is virtually and practically impossible to know and to calculate the error rate in actual case work because we seldom know with absolute certainty the identity of the latent print in question. In that circumstance, the comparison is a moot exercise unless only the examiner does not know the true identity. Never mind that an experienced examiner can "know" an ident is valid through education, training and experience. That doesn't count in scientific, statistical calculations. My point remains, that such error rates cannot be produced, except through proficiency testing, which is fraught with bias and manipulation.

An article on the MD Public Defenders' forensic challenges...

Call it the CSI list: fingerprints, gunshot residue, ballistics, toxicology, bite patterns - the full rundown of forensic methods used by prosecutors to link defendants to crime scenes.

Public perception and generations of prosecutors suggest that all of those forensic methods produce rock-solid scientific evidence against criminal defendants. And one by one, Patrick Kent, chief of the forensics division at the state public defender's office, is trying to destroy those certainties.

Kent has enjoyed success by attacking the validity of gunshot residue and - just last month in a Baltimore County murder case - fingerprints.
Predictably, prosecutors are no fans, insisting that the science he is trying to undermine has stood the test of time.

http://www.baltimoresun.com/news/local/ ... ent05nov05,

0,1436371.story?coll=bal_tab01_layout

It is the job of defense attorneys to obfuscate, challenge and distort damning evidence against their clients, even when they know the client is guilty. Even defense attorneys recognize, though perhaps do not admit publically, that fingerprint and most other scientifically based but subjective evidence reports provided by ethical, third party laboratories are nearly always accurate. Anyone arguing 100% accuracy is kidding themselves, but such evidence asymptotically approaches 100% when performed faithfully using the ACE-V methodology. If it did not, there would be thousands of defense challenges to the actual evidence using second opinions. There are extremely few because such challenges would reinforce the findings and further weaken the defense. If there were as many errant individualizations as the defense claims, they would have a heyday proving their claims of errancy.

Instead, since the actual evidence and subsequent report cannot be undermined as inaccurate, the only challenge left is to attack the science itself as unreliable by demanding accountablility for an error rate, which everyone knows cannot be provided due to the nature of the evidence and its origins. Apparently, such grasping at straws has made headway in one or two courtrooms. As with the Judge Pollock case in Pennsylvania, it should soon be realized by the justice system that forensic comparisons are the most reliable form of evidence in any courtroom...more reliable than eye witnesses, more reliable than any form of defense posturing. If all forensic reporting that relies ultimately on a subjective analysis of evidence submitted for lab testing is barred from courtrooms, then there is absolutely nothing that can be used as evidence in a courtroom. You might as well close the doors and save the public millions of dollars in salaries and turn everyone loose on their claim of innocence.

When a judge, or anyone for that matter, denies the reliabity of fingerprints found at a scene, it always makes me wonder what they will say when a crime is committed against their own person or property. Will they be the first to refuse to have the investigators process the scene for prints or refuse to want to use that evidence in court identifying their assailant or burglar. I would be hard pressed to think they would still feel the same about how reliable those print are.

I have two questions:

1st, in the past LPE’s have been happy when judges haven’t allowed our critics to testify. How are judge’s suppose to decide who can and who can’t testify? Can anyone who’s had a class testify (since we have such a long standing history of accurate results)? The Haber’s would qualify under this standard. If I’m not mistaken, they’ve taken more classes than many examiners that I know. Maybe the standard should there be higher. Well, the Haber’s have PhD’s and they’ve published quite a bit of information on fingerprints. Does that make them experts that should be able to testify in a trial? Maybe potential experts should need to answer some basic questions?

In this case the judge wasn’t looking at the long standing history, she was looking at this particular case and it was her job to decide if the practitioners in this case used the methodology in a way that would produce reliable results. The only error from our profession that’s been studied was the Mayfield erroneous ID. In that case it was shown that if practitioners don’t use the methodology in a rigorous fashion then errors can happen. In this case the judge stated, “The testimony of the two Baltimore County Crime Lab Technicians in the case specific hearing was inconsistent as to what the Crime Lab required standards were, for example”. With this statement alone can anyone tell me why the judge should have thought this application of ACE-V would be reliable?

2nd, I was under the impression (from this article, http://www.examiner.com/a-1017710~_Radi ... enged.html ) that a motion for reconsideration was filed. Does anyone know how long the judge has to respond? This article was from Oct. 29th.

I have always used the term "education, training and experience" which I have shamelessly stolen from unknown sources over the years. Experience is lacking when the courts allow PhD's in divergent disciplines to testify as experts in a field in which they have little or no practical, hands-on experience. As any of us know who work daily with latent print comparisons, you cannot possibly perform adequately unless and until you have added tens of thousands of latent prints to your mental database. It is that experience that tells us what is common, what is uncommon, and how much of each is significant to a given impression.

As a practical example, I can show you how to ride a bicycle. I can give you dozens of books on how to ride a bicycle. You cannot be an expert bicycle rider until you've ridden hundreds of miles and learned the nuances of riding, setting up the bike, drafting, surface conditions, tactics, adjustments and other details. These self-proclaimed experts are no different. They have only read books for the most part. Is it not strange that there are few if any experienced examiners who are attempting to undermine the latent print discipline?

So practical experience should be the criteria? All the examiners in known cases of erroneous ID’s had practical experience, why didn’t this help them? I still think judges need more than experience to determine if a comparison is reliable.

Education, training AND experience. A healthy dose of ethics and honesty also finishes off the receipe. When a verification is glossed over, that gets into the ethical realm. As I've mentioned before, with ever larger AFIS and IAFIS databases throwing large numbers of close candidates out for consideration in place of a few good local possibilities, we must be more alert than ever for the possibility of a bad individualization. I think years of experience has dulled the senses of many examiners to this possibility. Make every ident (oops, sorry, individualization) with the knowledge that if you miss it, your career is over, and you'll pull back from the edge of that over-confident envelope. I don't think this was a problem in the past, but it is becoming an issue today. If you can't be absolutely, positive, don't make the call, and save your pride for the next case.

m,

You mentioned education and training. This brings me back to my initial point, don't you think it's a problem that the Baltimore employees didn't know what their own standards were? Isn't this a sign that they aren't educated or trained enough to be considered experts?

(The court decision calls these employees technicians but I'm assuning that they are latent print examiners since the judge was asking them about minimum point standards).