IAI Position Paper

[Charles Parker]

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.

For those that are bothered and feel insulted by the IAI Position Paper, I know exactly how you feel. AFter reading the Amicus Brief on the Patterson case I was upset and bothered that here are some very esteemed well educated individuals that could actually believe some of the things that were written.

But I overcame that and bit my lower lip and I get up each day and go into work with the idea of doing the very best I can. By being as accurate as I can. By being as fair and honest as I can. To tell the truth even when some do not want to hear it. To be factual and caring with each case that I am responsible for. I try each day to teach those around me, and expound to those peers that we can make a difference in serving the public and assisting some with being able to solve the crime that they have been exposed to and on some ocassions provide closure to those that have been left behind.

I promise to myself each day to be a person that others can look up to and never bring myself and the discipline that I dearly love into any kind of disrepect or negativity.

Does this mean that the discipline of Latent Print Analysis does not have any problems. NO, it does not. Every human endeavor including the Law, Academia, other scientific disciplines, other human approaches to the problems of life have their own problems.

But I believe this: that those problems as expoused by some have been inflated either because they actually believe subjectively what they think is the factual truth or have bolstered some incidents for some other agenda.

The concept that only true scientist/academist have the knowledge to determine what is proper and what is not OR that fingerprints has problems because the majority do not have college degrees, OR that fingerprint is like Astrology, OR is like eye witness identification. All I can say is a quote from JOHN STOSSEL. Come On Give Me A Break.

I understand how you feel. Been there done that.

[L.J.Steele]

For those that are bothered and feel insulted by the IAI Position Paper, I know exactly how you feel. AFter reading the Amicus Brief on the Patterson case I was upset and bothered that here are some very esteemed well educated individuals that could actually believe some of the things that were written.

I'm sorry that you feel that way. If you have concerns about the NACDL amicus brief in Patterson, please email me off-list and we can talk about them. (If you want to talk about the NE Innocence Project brief, you'd need to email Atty Seigel or Dr. Cole.)

The ideals you describe are exactly the ideals one would look for in an expert. The NACDL brief talks about the possibliity of good-faith errors and the psychological factors that may contribute to them. At least from my viewpoint, the only agenda was, and is, ensuring that only evidence established to be reliable goes to the jury, that the triers of fact (judges and juries) understand the factors that can contribute to good-faith mistakes, and that the appellate case law promotes better practices which will help ensure those two things.

I don't know if you were at the Maryland IAI meeting, but I talked there a bit about an eyewitness ID analogy. All human beings perceive, compare, and feel confidence in their results in certain ways. Judges are most familiar with these issues as they arise in eyewitness ID research which often discuss, inter alia, confirmation bias and blind vs. non-blind administration of identification procedures. There are, of course, also vast differences between a comparison between an image and a memory made in an instant, and of between two durable images that can, to a large extent, be independently compared by others. The analogy is limited, but not, I think, inappropriate.

[Steve Everist]

Lisa,

The main problems that I have with the idea of comparing eyewitness testimony to that of fingerprint testimony is that eyewitness testimony can not be reproduced, peer reviewed, re-experienced by the original person before trial, and neither the defense nor the prosecution can hire an eyewitness "experiencer" to relive the events and testify to them.

You also can't become a better eyewitness through training and experience. The eyewitness is working purely from memory of an experience that likely happened during a time of emotional stress or trauma.

You and the Habers seem to be the biggest champions of this comparison, yet I don't think it deserves the attention it has been given thus far.

I tend to think it is much more towards the side of an inappropriate comparison and that's giving the most benefit of the doubt towards the only link I find - the brain.

[L.J.Steele]

The main problems that I have with the idea of comparing eyewitness testimony to that of fingerprint testimony is that eyewitness testimony can not be reproduced, peer reviewed, re-experienced by the original person before trial, and neither the defense nor the prosecution can hire an eyewitness "experiencer" to relive the events and testify to them.

You also can't become a better eyewitness through training and experience. The eyewitness is working purely from memory of an experience that likely happened during a time of emotional stress or trauma.

I agree with most of what you've said and I think I've said (or written) those very same caveats. It is possible that the analogy is being taken out of its original context by other commentators or litigators. (I haven't seen Haber's take on the comparison.) When I talk about eyewitness ID, I'm generally doing so in an appellate brief in order to refer the court to that body of case law as a way to remind it about its decisions dealing with research psychology and about things like confirmation bias and non-blind testing issues. I'm not trying to directly compare the witness' experience or say that forensics experts are as fallible as eyewitnesses -- I'm primarily talking about the legal analysis of a scientific issue in terms that a trial or appellate judge has already experienced.

I'm not[\b] trying to say that the expert and witness' experiences are identical or even strongly comperable. My last post above talked about the question you are raising about the ability to replicate the examiner's initial identification.

The areas where I see correspondence are:

Confidence Bias: Vulnerability of an examiner to outside information at the time of making the comparison. A similar problem arises with non-blind verification. See Busey and Goldstone's work at Indiana U., Dror's work, and some of Wells work on inadvertent feedback in the eyewitness ID area.

Other Psychological Pressures:[\b] Vulnerability of the examiner to peer pressure, tunnel vision, fatigue, etc. -- the Stacey report and Berns, et als., Neurobiological Correllates of Social Conformity and Independence During Mental Rotation, 58 Bio. Psych. 245 (2005).

Confidence: Possibility that the examiner's initial confidence in the match, if not recorded at the time will be inflated by post-match events, including trial preparation. One may have an expert who felt at the time he or she made that match that it was difficult and was concerned about distortions/discrepancies, but felt there was enough to make a match, but by trial has forgotten all about those initial concerns due to post-match feedback about the case. See Bradfield, Wells & Olson, The damaging effect of confirming feedback on the relation between eyewitness certainty and identification accuracy, 87 J. Appl. Psychol. 112 (2002); Wells, Olson & Charman, Eyewitness identification confidence, 11 N. Dir. in Psychol. Sci. 151 (2002); Wells & Bradfield, “Good, You Identified the Suspect”: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. Appl. Psychol. 360 (1998); Penrod & Cutler, Witness Confidence and Witness Accuracy: Assessing their Forensic Relation, 1 Psychol., Pub. Pol’y & L. 817 (1995); Sporer, et al., Choosing, Confidence and Accuracy: A Meta-Analysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychol. Bultn. 315 (1995); Luus & Wells, The Malleablility of Eyewitness Confidence: Co-Witnesses and Perseverance Effects, 79 J. Appl. Psychol. 714 (1994).

We're seeing more case law in the eyewitness ID area recognizing that confidence (I'm 100% sure) and accuracy (and I'm 100% right) are not strongly correlated in the eyewitness ID area. I'm expecting this to play out in terms of whether an expert can testify that he or she is 100% certain of the match, or has to couch the opinion in terms of reasonable scientific certainty. It may also play out in more cross-exam about what the examiner knew (and documented) at the time of the identification and what he or she has learned since that experience.

Good-Faith Mistake:[\b] This is more a question of how a defense attorney should approach a mis-ID issue (as opposed to a suggestion of deliberate fabrication/fraud). The attorney would be suggesting that outside information, peer pressure, etc. may have misled the examiner into making a mistake. Massachusetts has a jury instruction that might be adopted from the eyewitness ID area. See Com. v. Pressley, 390 Mass. 617, 457 N.E.2d 1119 (1983).; Doyle, Two Stories of Eyewitness Error, The Champion 24 (Nov. 2003) (contains sample eyewitness cross-exam).

Replicability:[\b] I will add the caveat there that given Moses experience with Mayfield and defense experts' failure to detect errors in Cowans and some of the other mis-ID cases, I'm a bit concerned about how well a second examiner can look at the data fresh without being tainted by the knowledge that he or she has been presented with the latent and exemplar because someone else believes the two to match. Busey had a nice presentation on this at Vegas ABFDE last November. Obviously, examiners can get past that, else we wouldn't see defense experts disagreeing with official conclusions as in the recent South Africa case or in the McKie case, but it is a problem that the defense bar and courts need to be aware of.

[Carl Speckels]

Steve, I have to say that I've always found that comparison (eyewitness testimony to LP examination) very clumsy and rather insulting for the very reasons that you listed. I realize that there may be loose parallels to be drawn between the two from a psychological perspective (confirmation bias, etc.) but that is where the comparison ends. After all, one is performed by trained professionals using an established and systematic method to interpret the relationships of correlating data while the other is recreated from a mental snapshot. I'm not familiar with the references regarding 'legal analysis of a scientific issue' that Lisa speaks of but it still reads like an apples and oranges comparison to me.

[Gerald Clough]

There are a couple of issues common to print comparison and eyewitness identification, but they are too disimilar to do much comparison. I think most of the issues they have in common substantially fall away when the print examiner performs to the professional standard. For instance, both processes can be corrupted by foreknowledge that a hot suspect is represented in the samples. But the comparison of images to memory in eyewitness identification has none of the articulable process of latent comparison. The eyewitness can't reasonably be expected to explain just why they recognized the person in the lineup.

Of course, because eyewitnesses are (unless Dr. Gary Wells happens to witness the crime) laypersons, issues in eyewitness identification can be readily explored in studies, and the fact that there is now a body of such research is the primary reason expert testimony is being found useful. (For those that don't follow this evolution, judges previously believed juries' common sense was sufficient to judge eyewitness evidence, and there was little research to say otherwise.) As it has always been, it's difficult to do such studies in latent comparison, since it would be next to impossible to find subjects with the training and experience to perform comparisons and who also were not aware of the specific issues being studied. If I know I'm part of a study, and you tell me the suspect is among a set of latents, I know enough about the issue likely to be under study to be suspicious of that information.

It is well for us to keep in mind why the law in eyewitness evidence is moving steadily toward admissibility of expert opinion. So long as the jury is deemed able to judge the credibility of the evidence by application of common knowledge and sense, it is held that expert testimony on the nature of the evidence is not helpful. So long as the lay jury can judge the examiner's comparison by their own senses and by applying the examiner's testimony on the how and why of the conclusion, there is little use for further testimony about the process.

It is well, too, to keep in mind that the other factor in the change in eyewitness evidence, aside from the existence now of a body of eyewitness research, is the revelation of the falibility of eyewitness identification. We have to be prepared to make rational showings of the how's and why's of erroneous fingerprint identifications, showing as best we can that they are examples of irregular process, the lack of which can be demonstrated in our cases.