CLPEX Chat Board

Ralph Haber is, by profession, a psychologist although I did see him listed somewhere as a Psychometrician. He claims an expertise relating to matters of perception especially as it relates to the reliability of eye witnesses. In a resume dated March 2003, Prof. Haber claimed to have testified in court as an expert in fingerprint identification. I suppose this claim was too much even for Prof. Haber. In a later resume, dated October 2005, he changed this entry to read: “…having provided testimony on factors that affect accuracy of testimony and identifications.”

Prof. Haber has had fingerprint training. Three courses to be exact: a 24 hour basic course and two 40 hour courses, one taught by K. Wertheim and the other by D. Ashbaugh. Good God! Let’s contact the IAI and demand that they send him his CLPE documents. Of course, Prof. Haber has no real case work experience. Considering his position on the practice of fingerprint science, Kasey and Dave must allow students to bring cots to class since Prof. Haber obviously slept through both of them.

If anyone out there knows of fingerprint examiners doing independent or unsupervised case work with less training than Prof. Haber, please stop them immediately. I fear our jails are filling up with innocents.

It would help the argument if those who wish to participate would do a little research before jumping in with both feet. How many of you have actually read the “Daubert Decision?” I’ll bet that there are some out there who think that Daubert was a fingerprint case. The original suit involved a claim against a pharmaceutical company and the alleged birth defects caused by one of its products. For those who have not read Daubert, it deals with the admissibility of proffered scientific evidence in federal courts and the factors judges should consider in their roles as gatekeepers. So here is what the decision said:

“Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules.”

Some people feel that this is a list of requirements that each case must meet. Others feel that is merely instructs judges on the type of things they should be looking at and focus on the language: “The inquiry is a flexible one…”

Some fingerprint critics claim that because there is no established error rate for fingerprint identification, it should be excluded. But the court said that one of the factors to look at was the known or potential error rate. Obviously a potential error rate is not something carved in stone.

The decision also said:
“Nothing in the Rules as a whole or in the text and drafting history of Rule 702, which specifically governs expert testimony, gives any indication that "general acceptance" is a necessary precondition to the admissibility of scientific evidence. Moreover, such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to "opinion" testimony.”


Wait a minute. I bet you thought that general acceptance was one of the requirements since we are always having this argument about what the appropriate scientific community is which accepts the practice of fingerprint identification. “General acceptance” was a concept under “Frye” and the court rejected the idea that this was somehow assimilated into Rule 702. Daubert uses the term “widespread” versus “general” acceptance. The difference may seem subtle but is important. Certainly there is widespread acceptance of fingerprint identification considering its prolific practice by the relevant scientific community (which is not psychology or sociology).

And, speaking of Rule 702, the standard for expert testimony is:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

So let’s get back to Prof. Haber. Does he have the skill or experience to testify as an expert in fingerprints? Not according to his resume. Does he have the training or education to testify as an expert in fingerprints? With just three courses under his belt, I don’t think so. By the way, did he have to pass a test of any kind before getting his course certificates? Does he have the knowledge to testify as an expert in fingerprints? He once testified in court to the effect that if the end joint of a finger could be individualized by the comparison of 10 Galton points, logic dictates that a palm print, coming from an area that contains perhaps 20 times the surface area would require 200 Galton points to individualize. He obviously lacks the knowledge. If I were Kasey Wertheim or Dave Ashbaugh I would seek a court order enjoining Prof. Haber from listing my course on his CV. His performance is certainly no endorsement of either.

Dogma,

Even though arrogance and theatrics are entertaining, it doesn’t really address the issue. You seem to imply that case work experience and supervised case work are what’s important to be able to testify to reliable conclusions. You never answered why this didn’t work in the past erroneous identification cases??

The Daubert information is interesting but my questions were concerning the Maryland case. Daubert isn’t the admissibility standard in Maryland, it’s a Frye-Reed state, so the admissibility requirements are different. Your accusations of people not doing their research before jumping in with both feet seems to apply more to you than it does to me.

I do agree with you that taking classes alone doesn’t make someone qualified to make reliable conclusions, but from past empirical data we can see that supervised case work doesn’t produce reliable conclusions either. Could it be that rigorous use of standards and principles is what produces reliable conclusions? If so, then it shouldn’t be a big surprise that the examiners testimony wasn’t allowed in this case.

I see that some may have been confused by my last posting so I will attempt to clarify:

In the Maryland (Bryan Rose) Case, the fingerprint examiners were prevented from offering testimony concerning the source of the latent print because:

“…the Court will grant the Motion because the State did not prove in this case that opinion testimony by experts regarding the ACE-V method of latent print identification rests on a reliable factual foundation as required by MD Rule 5-702.”

The decision was not based on anything that the examiners did or did not do.

The State’s witness for the Frye hearing was Steve Meagher of the FBI. Steve was not involved in the fingerprint comparison but was there to assist the court in understanding the history and the process of fingerprint identification as practiced in the US for the past 100 years. The judge focused her decision almost entirely on the FBI’s Mayfield error and the subsequent OIG report.

I used my reference to Daubert as an illustrative device and did not intend for any reader to misconstrue a connection to the Maryland Case.

The requirements of Frye-Reed are codified in Maryland Rule 5-702 (1999) which provides:
Expert testimony may be admitted, in the form of an opinion or therwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

Frye was a federal case heard in the Court of Appeals of District of Columbia in 1923 and actually involved a challenge to an early form of polygraph known as the “systolic blood pressure deception test.” The decision was short and stated:

“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Reed v. State, 283 Md. 374 (1978) was a state case that involved a challenge to voiceprint analysis and stated:
If the reliability of a particular scientific technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. While this demonstration will generally include testimony by witnesses, a court can and should take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications that bear on the degree of acceptance by recognized experts that a particular process has achieved.

With regard to the qualifications of expert witnesses, the court is given wide latitude. An expert may be qualified as such by possessing specific knowledge, skills, experience, training or education relating to the matter under examination. Of course, a “subject matter expert” should possess formal training which allows him to exercise his skill expertly and thereby gain the experience necessary for the proper and efficient examination of phenomena.

Hope that clears things up.

Dogma,

While I understand the motivation behind supporting the fingerprint profession, I don’t understand people’s unwillingness to look at this objectively and see where we should try to improve so this doesn’t happen again. Even if the judge reconsiders her decision, I don’t think that means that we are in the clear. We should continually be trying to make improvements.

I think it’s important to ask ourselves why the court ruled that the State didn’t prove that ACE-V rested on a reliable foundation. I really don’t believe that it’s because ACE-V doesn’t rest on a reliable foundation, so I’m trying to figure out what some other possibilities are.

Is it possible that the judge determined this because of how the examiners in this case testified? I don’t know the answer because I haven’t seen their transcripts. What I do know is that 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 in the written decision, do you still think “The decision was not based on anything that the examiners did or did not do”?

The citation that you reference: “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,” is a footnote relating to the following sentence: “Nevertheless, various crime labs require certain minimum points of friction ridge detail similarities.”
The judge does not specify what the inconsistency was and does not reference the crime lab protocol which was supposedly violated. This may be a misconception on the part of the judge since the assertion is unsupported by specific references.

In any event, this perception did not, according to the judge, play into her decision. Earlier in the document the judge writes:
“Despite having held a hearing on the case specific fingerprint evidence, the Court has acquiesced in the parties’ requests that the Court determine the admissibility of latent fingerprint identification opinions without consideration of the case specific information presented.
The judge further distils the issue with:
“Issue Presented
Whether ACE-V is a methodology which establishes the reliability of the general practice of latent fingerprint identification.”

And, indeed, the judge goes on to ultimately state:
“In conclusion, the proof presented by the State in this case regarding the ACE-V methodology of latent fingerprint identification showed that it was more likely so, than not so, that ACE-V was the type of procedure Frye was intended to banish, that is, a subjective, untested, unverifiable identification procedure that purports to be infallible.”

In the novel (and movie), The DaVinci Code, there is a character, a monk named Silas, who practices corporal mortification (and murder). This practice is designed to put to death all things of the flesh so that one may live in the spirit. I believe that research into the science and re-examining our practices can only strengthen the foundations for what we do as fingerprint examiners. However, I am not prepared to, nor do I see a need for the self flagellation that some examiners find attractive. The sins are few and the virtues many.

That’s the difference between science and dogma. Some people have a hard time letting go of their beliefs regardless of the evidence before them, while others think that no matter how small the dilemma is, it’s better to acknowledge it and fix it.

Have a nice evening.

It is the court that determines what it accepts as an "expert witness." There are countless abuses of this, especially when you consider some of the paid henchmen hired by the defense. How often do you know of persons presented by either prosecution or defense being refused expert witness status by the court? Precious few.

That is not to say that that defense experts are all bogus witnesses. A few legitimate examiners do, from time to time, hire themselves out at substantial fees to the defense to contest a finding. If the defense witness is truly an ethical, legitimate expert, more power to them. On the other hand, how many courts have the knowledge or expertise to know an illegitimate witness from a legitimate expert?

*********
"This is not a court of justice, young man, it is a court of law!" - Oliver Wendell Holmes

Main Entry: di•lem•ma
Function: noun
: a situation in which one has to choose between two or more things, ways, or plans that are equally unsatisfactory : a difficult choice

Philosophically, a dilemma can not be fixed otherwise it would not be a dilemma.

I'm outta here....

Michele Triplett wrote: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?.

It depends on what one is testifying about. If the defense expert wants to testify about the actual identification -- is it a match or isn't it, then I'd expect a court to want someone who has demonstrated skill and experience in making fingerprint matches.

But that's not necessarily the field that an expert on the reliability of fingerprint matching might be testifying to:

For example, Dr. Busey from Indiana might be called as an expert to talk about his study about the neurology of print examiners and why that suggests that examiners see prints differently from untrained observers. He doesn't need to know anything about fingerprint methodology to talk about the physical structures of the brain and how they work.

A biologist could be called to testify about fingerprint formation in the womb and the underlying structures that create ridges and make them permanent -- again, the biologist would not need to know anything about matching prints to do so.

Dr. Dror could testify about his studies on confirmation bias to talk about how that psychological phenomena can affect how human beings process information. Again, he's not testifying about fingerprint matching, per se, he's testifying about how the human mind works.

So if the testimony is dealing with things like confirmation bias, stress, tunnel vision, etc., then the expert may be testifying solely based on human psychology -- knowledge of the underlying field is not as important.

mdavis wrote:It is the court that determines what it accepts as an "expert witness." There are countless abuses of this, especially when you consider some of the paid henchmen hired by the defense. How often do you know of persons presented by either prosecution or defense being refused expert witness status by the court? Precious few.

And a great deal of bad evidence comes in that way. At least in my neck of the woods, the prosecutors put on most of the experts -- I work in indigent defense and there's little money available for outside experts. A surprising amount of stuff that might raise an outside observer's eyebrows gets in because the defense attorney doesn't know enough to object and the expert is saying things that fit common sense, but may not be true. (I've posted here in the past about the "didn't look for fingerprints on the car because it rained and there wouldn't be any left" testimony in a murder case, or the guy with the novel "high traffic area" theory that the most legible print left on a storm door had to have been made by the last person out the door testifying in a multiple murder case.) Get a defense attorney talking about prosecution "gang" experts or some of the stuff that comes in during child sex abuse cases about children's behavior & memory and you'll likely get an earful.

Exclusion of experts -- varies. I just lost an appeal in a self-defense case where the testimon of a defense expert who'd trained police officers and citizens in armed self-defense for over ten years was almost entirely excluded because the judge seemed to think that things like reaction time and effects of high stress on memory and perception were issues within the jury's common knowledge. Eyewitness ID experts like Drs. Wells and Fulero are commonly excluded on the same theory -- that the frailties of perception and memory are matters within the jurors' common knowledge. Psychologists who study false confessions like Dr. Kassin face similiar problems.

Anyone have any cites, other than the Baltimore case and Langill (neither of which has reached final judgement), where prosecution forensic experts have been excluded or significantly limited absent evidence of outright fabrication or fraud? Polygraph experts as a whole tend to be excluded, in part for policy reaasons. Other than that, I can only think of a handful of examples in other fields -- a couple in firearms ID, a couple in handwriting/document analysis, and a couple in hair/fiber.

And a great deal of bad evidence comes in that way. At least in my neck of the woods, the prosecutors put on most of the experts -- I work in indigent defense and there's little money available for outside experts.

That's an interesting comment. I have it on good authority that in my state, the annual budget for public defender's office is twenty times greater than the combined budget of the state crime lab system. The amount of money spent (and apparently wasted) on defense challenges to solid evidence is staggering. That's not to say it isn't important, just that so very often it is an expensive, last ditch effort of the defense to appear to the defendant that (s)he is doing everything possible to defend the client, perhaps to avoid a lawsuit for "inadequate" defense?

*******
"This is not a court of justice, young man, this is a court of law!" - Oliver Wendell Holmes

[quote="mdavis]That's an interesting comment. I have it on good authority that in my state, the annual budget for public defender's office is twenty times greater than the combined budget of the state crime lab system. The amount of money spent (and apparently wasted) on defense challenges to solid evidence is staggering. That's not to say it isn't important, just that so very often it is an expensive, last ditch effort of the defense to appear to the defendant that (s)he is doing everything possible to defend the client, perhaps to avoid a lawsuit for "inadequate" defense?[/quote]

While some clients have nothing better to do than file lawsuits (or attempt to do so, often their pro se efforts get dismissed for failure to follow proper formats), they almost never win anything. I don't think many criminal defense lawyers worry much about either a civil lawsuit or a successful habeas claim by a disgruntled client -- odds of success are nigh akin to winning the lottery.

What folks do worry about is failing to properly represent an innocent client -- recall Cowans' comments that given the evidence in his trial HE would have voted to convict. The cases against a number of the folks who've benefitted from DNA testing looked "solid", but turned out to be wrong.

If the prosecution has a solid case, the defense attorney will do his or her best to get the client to take a plea. Some cases, of course, aren't pled -- the kinds that wind up as death cases, for example. And those get investigated thoroughly and fought hard.

But you can't try to compare the budgets -- there's a lot of criminal cases that don't need or get any forensic work, armed robberies for example, but the defendant may qualify for a public defender. Ask around at your public defender's office about salary, benefits, clerical support, etc. -- you'll likely find that you folks do pretty well in comparison.

I don't think the issue is comparative salaries, but rather the relative amounts of money allocated to each resource in relation to its intended public benefit.

The intended benefit of the public defender services, like the lab, is to make sure that only guilty people go to jail for the crimes they actually committed. Public Defender services are also there to make sure that trial are fair and follow the constitutionally and statutorially required process. Odd as it may seem, we're mostly on the same side.

You had complained upthread about the resources used to challenge fingerprints when everyone knows they are good, reliable procedure. Did you see the recent 60 Minutes story on Bullet Lead analysis which the FBI claimed for decades was good, reliable science?

http://www.cbsnews.com/stories/2007/11/ ... 2453.shtml

Remember that attorneys are not normally trained in science -- when this sort of issue comes up, it makes attorneys skeptical about all of forensics, and more willing to try challenges in other areas.

L.J.Steele wrote:Did you see the recent 60 Minutes story on Bullet Lead analysis which the FBI claimed for decades was good, reliable science?

The courts require that the practises used by expert who testify are “peer reviewed” to ensure reliability. I think that reliability comes from the existence of a correcting feedback loop. A carpenter understands how to make joints in wood, not because of peer review but because if they are made badly, the chair will collapse or the cabinet will wobble. This is a natural feedback loop so I would trust a competent carpenter’s testimony about joints.

Where there is no natural feedback loop, “science” puts in the loop with research. This is what keeps theories grounded in reality. Until recently, if I was on a jury and a witness was introduced as an expert in the “science” of something, I would expect that the science was built on solid research, and it was the research that was peer reviewed, not just theories.

Something about this story makes me feel uncomfortable:
http://www.dailymail.co.uk/pages/live/a ... xpand=true

Post- mortem examinations showed Maeve's injuries were consistent with being shaken violently.

Twelve expert witnesses supported the claim that she was guilty of manslaughter.

Is the expert testimony based on research which proves that shaking is the only explanation for the symptoms? Did the twelve just “peer review” each others opinions?

All science, by the very definition of the scientific method, is subject to peer review. You begin with an hypothesis, design an experiment which controls as many variables as possible to test the hypothesis , gather data (all the data from the experiment), analyze the data (all the data, not just what fits your bias), write the results, publish the report for peer review.

Science works because there are many who would either like to extend the work, reveal it's faults or bias, or who would like to make a name for themselves in debunking the results. The science of fingerprints has been in this crucible for a century. It is getting much needed peer review, but also it is being discredited for the inaccurate or sloppy work of a very few practitioners in what then become high profile cases. Judges who disallow otherwise potentially legitimate individualizations (an assumption for the purposes of this post, not having seen all the bum idents) for reasons not related to the individual validity of the comparison in question in their case, are throwing the baby out with the bathwater.

The FBI contention that bullet lead analysis is 100% accurate is subject to legitimate scientific review. It is a relatively young science, instrumentation being what it is, and has been used infrequently. It needs serious study, no question.

It is indeed frustrating that judges and juries seldom have the background to evaluate scientific evidence. As a forensic scientist (chemist by education), I am not allowed to sit on a jury because of my relationship to law enforcement. Yet I would suggest that I would be a far better judge of scientific evidence than a retired carpenter or bus driver or housewife. So what we have wrought are juries, hand picked by attorneys for their emotional bias potential, not for their individual qualifications as deciders of fact vs. fiction.

The sheer volume of available data, huge AFIS databases with tens of millions of entries, and a century of success and accuracy should put the validity of fingerprint individualization beyond much doubt. What is a potential source of doubt are examiners who do not follow the honest process of peer review and verification. If any defense attorney truly believes his/her client is innocent and could not possibly have deposited the latent print reportedly identified to him/her, then the defense should legitimately request a disinterested (unpaid if possible since payment introduces bias) 3rd party evaluation. I contend most idents are not questioned because the defense knows they are valid (client admission), so they attack the science, not the comparison.